Sources of International Law 1

 Includes landmark cases

 Class by – Adv Himanshu Kashyap

 Former Civil Servant
About Me- Adv Himanshu Kashyap 2

 Studies
 Sainik School, Rewa, MP,
 B. A. LL. B. (Hons.) National Law Institute University, Bhopal, MP,
 LLM, Human Rights, National Law Institute University, Bhopal, MP, JRF
 Pursuing PhD in Law.

 Work Experience
 Ex Civil Servant- Chief Executive Officer, MP State Service, 2014 Batch
 Assistant Professor, Law, JLU, Bhopal, and Raffles University

 Advocate, Madhya Pradesh High Court , Jabalpur, M. P. and have been teaching
civil services aspirants and judiciary aspirants since 2014.
 3

Important for

UPSC CSE Mains

UPSC CSE LAW Optional Paper I

4
Class structure 5

 Introduction
 Sources of international law
 Cases
Recap
Introduction 6

 Where does international law come from and how is it made ?

These are more difficult questions than one might expect and
require considerable care. In particular, it is dangerous to try to
transfer ideas from national legal systems to the very different
context of international law. There is no “Code of International
Law”. International law has no Parliament and nothing that can
really be described as legislation. While there is an International
Court of Justice and a range of specialised international courts and
tribunals, their jurisdiction is critically dependent upon the consent
of States and they lack what can properly be described as a
compulsory jurisdiction of the kind possessed by national courts.
 7

 Oppenheim defines the term source of law as the name for a

historical fact out of which rules of conduct come into existence.
The term source refers to methods or procedures by which
international law is created. The source may be formal (i.e. legal
procedures and methods for the creation of general rules) or
material (i.e. actual materials providing evidence of the existence
of rules).
 8

 Oppenheim opined that there is only one source of international

law viz. common consent. Lawrence said that there is only one
source of law i.e. consent of nations. Consent may be either express
or tacit (implied). Logically, therefore, there are two chief sources of
international law; Treaties (express consent) and Customs (tacit
consent).
 9

 The result is that international law is made largely on a

decentralised basis by the actions of the 192 States which make up
the international community. The Statute of the ICJ, Art. 38 identifies
five sources:-
 (a) Treaties between States;
 (b) Customary international law derived from the practice of States;
 (c) General principles of law recognized by civilised nations;
 (d) Judicial decisions and
 the writings of “the most highly qualified publicists”.
Customary International Law 10

 In any primitive society certain rules of behaviour emerge and

prescribe what is permitted and
 what is not. Such rules develop almost subconsciously within the
group and are maintained by the members of the group by social
pressures and with the aid of various other more tangible
 implements. They are not, at least in the early stages, written down
or codified, and survive
 ultimately because of what can be called an aura of historical
legitimacy.
 11

 Custom and Usage: Custom is such a usage as has the force of law.
Usage is an international habit, which has yet not received the
force of law. Usage represents the twilight zone of custom, custom
begins where usage ends.
 When States in their international relations start behaving in a
particular way in certain circumstances, it is expected that in the
similar circumstances they will behave in the same way (usage). But
when this usage receives the general acceptance of recognition
by the States in their relations with each other, there develops a
conception that such a habit or behaviour has become right as
well as obligation of the State and in this way usage becomes the
custom.
 12

 A usage may or may not give rise to a custom. A usage crystallize

into a custom through the conduct of the States at the diplomatic
level, actions or statements of various States, foreign policy
documents, speeches of delegates at international conventions
and conferences, practice of international organs like the U.N., ICJ,
etc. The decisions of municipal courts of States, military and
administrative tribunals in their deliberations and proceedings,
following a specific usage in practice, convert a usage into custom.
The true test whether a usage has crystallized into a custom is that it
must be approved by the common consent of civilized nations or
general consensus of opinions.
The North Sea Continental Shelf 13

case
 Germany v Denmark and the Netherlands [1969] ICJ (also known
as The North Sea Continental Shelf cases) were a series of disputes
that came to the International Court of Justice in 1969. They
involved agreements among Denmark, Germany, and the
Netherlands regarding the "delimitation" of areas—rich in oil and
gas—of the continental shelf in the North Sea.
 Â Generation of customary rules by treaty: A provision of a treaty may also
14
generate a rule of customary international law, as held in North Sea
Continental Shelf Case (1969) ICJ Rep.3.

 In this case, the World Court observed: A treaty provision can generate
customary international law, but only when the provision concerned is of a
fundamentally non-creating character such as could be regarded as the basis
of a general rule of law.
 The passage of only a short time period is not necessarily a bar to the formation
of a new rule of customary international law, however, an indispensable
requirement would be that within the period in question, 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. Thus, opiniojuris
must be present before a practice/usage is to become a customary rule.
 15

 Relevant is that Denmark and The Netherlands, having ratified the

1958 Geneva Continental Shelf Convention, whereas the Federal
Republic of Germany did not, wished that Article 6, (equidistance
principle) were to be applied.
 * equidistance principle the method of determining the boundaries
in such a way that every point in the boundary is equidistant from
the nearest points of the baselines from which the breath of the
territorial sea of each State is measured
 16

 9. The Court then examined whether the rule contained in Article 6

had become customary international law after the Convention
entered into force – either due the Convention itself (i.e., if enough
States had ratified the Convention in a manner so as to fulfil the
criteria specified below), or because of subsequent State practice
(i.e. even if an adequate number of States had not ratified the
Convention, one could find sufficient State practice to meet the
criteria below). The Court held that Article 6 of the Convention had
not attained a customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 relating
to international humanitarian law in terms of the latter’s authority as
a pronouncement of customary international law).

 17

 10. For a customary rule to emerge the Court held that it

needed: (1) very widespread and representative participation in
the Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality);
and (2) virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In
the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e.
duration) for the formation of a customary law.

 18

 11. The Court held that the first criteria was not met. The number of
ratifications and accessions to the Convention (39 States) were not
adequately representative or widespread.
 Although the passage of only a short period of time (in this case, 3 –
5 years) 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
originally a purely conventional 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.”
Held 19

 The use of the equidistance method had not crystallised into

customary law and the method was not obligatory for the
delimitation of the areas in the North Sea related to the present
proceedings.

Right of Passage over Indian Territory 20
(Portugal v. India), 1960
 The Right of Passage Case (ICJ Rep. 1960) demonstrates that a
treaty provision practiced for a long time may become a custom.
The case illustrates that when in regard to any matter or practice,
two States follow it repeatedly for a long time it becomes a binding
customary rule.
Facts 21

 the Government of Portugal stated that its temtc~ry in the Indian

Peninsula included two enclaves surrounded by the Temtory of
India, Dadra and Nagar-Aveli. It was i.n respect of the
communications between those enclaves and the coastal district
of Daman, and between each other, that the question arose of a
right of passage in favour of F'ortugal through Indian temtory and of
a correlative obligation binding upon India. The Application stated
that in July 1!254 the Government of Indiaprevented Portugal from
exercising that right of passage and that Portugal was thus placed
in a position in which it became impossible for it to exercise its rights
of sovereignty over the enclaves.
Held 22

 A right of passage for non-military civilians exists as a rule of regional

customary international law between India and Portugal.

 23

 According to Art. 38 of the Statute of ICJ, there are two

requirements for the existence of international custom, namely:
firstly, there should be a sufficiently uniform State practice; and
secondly, the belief that such a practice is obligatory (i.e. the
opinio juris).
Pacquete Habana Case 24

 In April 1898, two fishing vessels, the Paquete Habana and the Lola,
separately sailed from the Spanish colony of Cuba. Both were
eventually captured by merchant vessels comprising the United
States blockade of the island, which, unbeknownst to the crew,
had been instituted amid rising tensions between the two countries.
 25

 In Pacquete Habana Case (U.S. Supreme Court, 1900), the court

examined State laws and practices, treaties, writings of publicists
evidencing usage, and decisions of court, and held that these
materials uniformly proved the existence of a valid customary rule
giving immunity to small fishing vessels, honestly pursuing their
calling, from belligerent capture in time of war.
 26

 International law is part of our law, and must be ascertained and

administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty and
no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators who by
years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be,
but for trustworthy evidence of what the law really is
Held 27

 In a 6-3 decision authored by Justice Gray, the Supreme Court ruled

that coastal fishing vessels are exempt from capture as prizes of war
under customary international law
Generality of the practice 28

 Although universality of practice is not necessary, the practice

should have been generally observed or repeated by numerous
States. If a State acts in a way prima facie incompatible with a
recognized rule, but defends its conduct by appealing to
exceptions or justifications contained within the rule itself, then,
whether or not the State's conduct is in fact justifiable on that basis,
the significance of that attitude is to confirm rather than to weaken
the rule (Nicaragua Case, ICJ Reports, 1986).
Nicaragua Case, ICJ Reports, 1986 29

 In July 1979, the Government of President Somoza was replaced by

a government installed by Frente Sandinista de
Liberacion Nacional (FSLN). Supporters of the former Somoza
Government and former members of the National Guard opposed
the new government. The US – initially supportive of the new
government – changed its attitude when, according to the United
States, it found that Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador. In April 1981 the United
States stopped its aid to Nicaragua and in September 1981,
according to Nicaragua, the United States “decided to plan and
undertake activities directed against Nicaragua”.

 30

 Did the United States violate its customary international law

obligation not to intervene in the affairs of another State, when it
trained, armed, equipped, and financed the contra forces or when
it encouraged, supported, and aided the military and paramilitary
activities against Nicaragua?

Held 31

 The United States violated customary international law. the Court

found that the United States could not rely on collective self-
defence to justify its use of force against Nicaragua.

South West Africa case, ICJ 1966 32

 Judge Tanaka observed “briefly, the method of generation of

customary international law is in the stage of transformation from
being an individualistic process to bring a collectivist process. This
phenomenon can be said to the adoption of the traditional
creative process of international law to the reality of the growth of
the organized international community. It can be characterized,
considered from the sociological view point, as a transaction from
a traditional custom making to international legislation by treaty.”
Opinio juris sine ncessitatis 33

 Opinio juris sine ncessitatis

 According to Art. 38 of the Statute of ICJ, international custom
should be the evidence of general practice accepted as law. This
feeling on the part of States that acting as they do, they are fulfilling
legal obligations is called opinio juris sine ncessitatis.
 34

 “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.” (Para
77).
International Treaties In the modem 35
period
 International treaties are the most important source of international
law. Article 38 of the Statute of ICJ lists international conventions
whether general or particular, establishing rules expressly
recognized by the contesting States as the first source of
international law. The term convention implies any treaty,
convention, protocol or agreement, etc. Treaties may be classified
into following two categories:
 36

 Law-making treaties: These treaties have a large number of parties

and create general or universal norms. These may be of two kinds:
those enunciating universal rules e.g. United Nations Charter, and
those laying down general rules e.g. 1958 Geneva Convention on
the Law of the Sea, Vienna Convention on the Law of Treaties,
1969, etc.
 Treaty-contracts: It is a treaty between two or only a few States
dealing with a special matter concerning these States exclusively.
 37

 A series or a recurrence of treaties laying down a similar rule may

produce a principle of customary international law. Further,
subsequent independent acceptance may generalize a treaty
originally concluded between a limited numbers of States. A treaty
is therefore, of considerable evidentiary value as to the existence of
a rule, which has crystallized into law by an independent process of
development. International treaties are agreements of a
contractual character between States or Organizations of States
creating legal rights and duties (Oppenheim).
Pacta Sunt Servanda (Basis of the 38
Binding Force of Treaties)
 According to Starke:
In nearly all the cases the object of the treaty is to impose binding
obligations on the States who are parties to it.
 Lauterpacht stresses: treaties are legally binding because there
exists a customary rule of international law that treaties are binding.
 39

 Pacta sunt servanda means States are bound to fulfill in good faith
the obligations assumed by them under treaties (sanctity of
contracts).
 Vienna Convention on the Law of Treaties provides:
 Every treaty in force is binding upon the parties to it and must be
performed by them in good faith (Art. 26).
General Principles of Law 40

 Article 38 (1) (c) of the Statute of ICJ lists General principles of law
recognized by civilized States' as the third source of international
law independent of custom or treaty. The phrase means principles
as general as to apply within all systems of law that have achieved
a comparable state of development. The rationality for the
inclusion of general principles of law as one of the sources of
international law lies in the fact that a principle, which has been
found to be generally accepted by certain civilized legal systems,
may fairly presumed to be so reasonable as to be necessary to the
maintenance of justice under any system.
 41

 Before the court applies any such principle, certain considerations

are taken into account.Firstly, a rule is a general principle of law, i.e.
it is not limited in scope.
 Secondly, the rule is recognized by most of the States of the world
community.
The word recognized' presupposes the existence of the rule in the
municipal law. It may be noted that general principles of law
include substantive as well as procedural principles.
 42

 Some general principles of law' common to municipal legal systems

are:
Res judicata (a thing or matter settled by judgment): A matter once
judicially decided is finally decided, and there is an absolute bar to
a subsequent action involving the same claims, demand or cause
of action.
 Estoppel (preclusion): A State party to international obligation is
bound by its previous acts or attitude when they are in
contradiction with its claims in the litigation
 Equity (reasonableness, fairness, etc.
Judicial Decisions and Juristic Works 43

 Art. 38 (1) (d) of the Statute of ICJ states that the Court shall
apply subject to the provisions of Art. 59, judicial decisions and
teachings of the most highly qualified publicists of various nations,
as subsidiary means for the determination of rules of law.
Thus, judicial decisions and juristic works are subsidiary and indirect
sources of international law. The decisions of International Court of
Justice do not create a binding general rule of international law, as
Art. 59 of the Statute of ICJ make it clear that the decisions of the
court will have no binding force except between the parties and in
respect of the particular case. Although ICJ has not adopted the
common law doctrine of precedent (i.e. stare decisis), it has largely
adopted its substance.
 44

 It is true that decisions of municipal courts of a State have little value in

international law, but the uniform decisions of the courts of many States
have a tendency to create evidence of international custom especially
in those fields of international law which are interwoven between
international law and municipal law such as nationality, extradition and
diplomatic immunities.

This source may be resorted to as final resort i.e. only when all the other
sources listed in Art. 38 have failed to resolve the dispute before the
Court. Sometimes juristic opinion does lead to the formation of
international law.

 *Drago Doctrine, a principle of international law that rejects the right of

a country to use military force against another country to collect debts.
Order of use of sources of 45

international law
 Nicaragua v. USA, ICJ 1986
 The court by majority has taken the view that the sources of
international law are not hierarchical but are necessarily
complimentary and inter related.
Jus Cogens 46
 47

 Jus cogens, also known as the peremptory norm, is a fundamental

and overriding principle of international law. It is a Latin phrase that
translates to ‘compelling law’. It is absolute in nature which means
that there can be no defense for the commission of any act that is
prohibited by jus cogens. These norms, though limited, are not
cataloged. They are derived from changing social, political
attitudes and major case laws and are not defined by any
authoritative body.
 This principle aims to seal the slightest suppression of any law in any
form and manner.
What is Jus Cogens? 48
 Jus cogens or peremptory norm means a
body of fundamental principles of
international law which binds all states and
does not allow any exceptions. It is basically a
compilation of norms that lays down the
international obligations which are essential
for the protection of the fundamental interest
of the international community and any
violation of these norms is thereby recognized
as a crime against the community as a whole.
 49


It is binding upon all the members of the international
community in all circumstances. Jus cogens imply
absolute restrictions on genocide, slavery or slave trade,
torture or other inhuman treatment, prolonged arbitrary
detention, and racial discrimination. Any activity or
treaty carried out by the states or international
organizations that contradict human dignity and rights
will offend the concept of jus cogens and thus, be void.
It can be said that jus cogens exist to protect and
uphold human dignity and rights.
Origin of the doctrine 50

 It stemmed from the idea of a binding law which

would be in alignment with natural law and would
render contrary customs and treaties invalid. This
idea led to the existence of hierarchical superior
norms that would invalidate the treaties and
customs. The doctrine of Jus cogens was initially
defined in Article 53 of the Vienna Convention on
the law of treaties 1969.
Article 2(f) and Article 53 of the Vienna 51
Convention
 Article 2(f) of the Vienna convention deals with the definition of a
‘contracting state’. It mentions that ‘contracting state’ means that
a state has consented to be bound by the treaty.
 It is in regard to the non-parties of the UN and states that they shall
act in accordance with the principles so far as may be necessary
for the maintenance of international peace and security. It is a
mandatory provision and has set a limit, determined by the general
interest of the international community.
 52

 Article 53 of the Vienna convention is the origin of the principle of

jus cogens. It states that a treaty is void if, at the time of its
conclusion, it conflicts with the peremptory norm of general
international law. The norm should be accepted and recognized by
the international community of states as a norm from which no
derogation is permitted and which can be modified only by a
subsequent norm of international law having the same character.
 53

 Article 53 Treaties conflicting with a peremptory norm of general

international law (“jus cogens”)
 A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character.
Article 64 of the Vienna Convention 54

 Article 64 of the Vienna convention deals with the emergence of a

new peremptory norm of international law. It states that if a new
peremptory norm of the international law emerges, any existing
treaty which is in conflict with that norm becomes void and is
terminated.
Criticism of Jus Cogens 55

 The doctrine of international jus cogens developed from the

principles of natural justice. These norms are actually a set of rules
where no derogation is allowed under any circumstances and they
cannot be abrogated. They are argued to be hierarchically
superior because the power of a state to make treaties is subdued
when it confronts a super customary norm of jus cogens. The point
of criticism being that these norms are putting limitations on the
ability of states to change or introduce an international law.

 56

 The second point of criticism being about the consent

and obligation of states to follow the norm. The states
which are a part of the international community have to
mandatorily comply with the norms, regardless of their
consent and their individual opinion to be bound. They
are not provided with an option to choose since these
rules are too fundamental for states to escape
responsibility. States consider these rules to be so
important to the international society of states and to
how the society defines itself that they cannot
conceive an exception and cannot, therefore, escape
liability.
 57

 As known, international laws and decisions only have an advisory

role and none of their provisions are enforceable as the law of any
state. Hence, when it comes to the enforceability of jus cogens, the
states under an obligation have not initiated any noticeable
provisions for the implementation of the same which raises
numerous queries on the existence and requirement of the widely
recognized norms.

 58

 Problems also remain as to the application of the norm, in terms of

which rules must necessarily be covered under the said norms.
There were serious doubts concerning the fact that the norm could
be misused in interpreting the rules to be covered under jus cogens.

 59

 In the case of Bosnia and Herzegovina v Serbia and Montenegro

[2007],
 Serbia was alleged to have attempted extermination of the Muslim
population of Bosnia and Herzegovina which led to violations of the
Convention on the Prevention and Punishment of the Crime of
Genocide, thereby invoking an article of the genocide convention.
It was unanimously held in this case that Serbia was neither directly
involved nor was complicit in it but it rather committed a breach of
genocide convention by failing to prevent it from occurring, he
genocide convention being a part of jus cogens.
 60

 In this case, Justice Lauterpacht was in favour of the decision and

defined jus cogens as a concept which is superior to both
customary law and treaty as it stands on the very fundamentals of
natural law and humanity. He also associated jus cogens with the
general principles of law and said that irrespective of its origin, jus
cogens encircles all the fundamentals of a necessary law at the
international level and hence, is the superior-most in hierarchy.

 61

 In the case of the Republic of Nicaragua v. the United States of

America, the U.S. decided to plan and undertake activities against
Nicaragua. Armed interventions were led by the U.S. in Nicaragua
and they also undertook the military and paramilitary forces in and
against Nicaragua.

 62

 It was held by the International Court of Justice that the

U.S. could not rely on collective self-defense to justify its
use of force against Nicaragua. The United States
violated its customary international law obligation of not
to use force against another State when it directly
attacked Nicaragua. The Court has also noted that
while it may be aware that political aspects may be
present in any legal dispute brought before it, the
purpose of recourse to the Court is the peaceful
settlement of legal disputes.
 63

 State of Punjab v. Dalbir Singh AIR 2012, the Supreme Court

declared the following:

 “… the ratio in …Bachan Singh (supra)… has been universally

acknowledged in several jurisdictions across the world and has
been accepted as correct articulation of Article 21 guarantee.
Therefore, the ratio in ….. Bachan Singh (supra) represents the
concept of jus cogens meaning thereby the peremptory non-
derogable norm in international law for protection of life and
liberty.”
 64

 In June 2020, the Kerala High Court in Cry for Life Society and Ors.
vs. Union of India and Ors. AIR 2020, further interpreted right to life
and in its judgment discussed that “the rule regarding protection of
life before birth could be considered as ‘jus cogens’ (final norm of
general international law)”.
 The court’s discussion was based on whether a pregnant woman
should be allowed to terminate her pregnancy if the baby was to
be born with disabilities or due to other scientific grounds justifying
termination of pregnancy. There is a life before birth which needs
equal protection as life after birth and its protection should be
guided by scientific information. This is a reasonable and scientific
interpretation of the right to life under both domestic and
international law of treaty interpretation.
Thank You 65