Sources and codification of International Law

Forms of law-making sources of International Law / Different sources of International Law.

The sources of International Law are the foundations or origins of legal rules that apply to relations
between states and other international actors. There are five primary sources of International Law:

1. Treaties and Conventions: Treaties are agreements between states or international organizations
that establish legal obligations and rights. Treaties can cover a wide range of issues, from trade and
commerce to human rights and the environment.
2. Customary International Law: Customary international law arises from the consistent and general
practice of states, accompanied by a sense of legal obligation. Customary international law is often
based on traditional practices and norms, and can be recognized through the decisions of
international courts and tribunals
3. General Principles of Law: General principles of law are legal principles that are recognized by most
legal systems and are considered to be fundamental to the operation of the legal system. General
principles of law can be used to fill gaps in existing legal frameworks and to develop new legal rules
4. Judicial Decisions and Opinions: Judicial decisions and opinions of international courts and
tribunals can also serve as a source of international law. These decisions can establish new legal
principles or clarify existing legal rules, and can be used to resolve disputes between states and
other international actors.
5. Scholarly Writings: Scholarly writings, including books and articles, can also influence the
development of international law. These writings can help to shape legal debates and can
contribute to the development of new legal principles and rules.

Overall, the sources of international law are diverse and complex, reflecting the diverse range of actors and
interests that shape the international legal system. The development and evolution of international law
depend on the ongoing interaction between these sources, as well as the political and social contexts in
which they operate.

International Conventions as a source of International law.

International conventions, also known as treaties, are one of the primary sources of international law. They
are formal written agreements between two or more states, or between states and international
organizations, that establish legal obligations and rights.

International conventions can cover a wide range of topics, including human rights, environmental
protection, trade, and disarmament. They are typically negotiated and adopted through a formal process
that involves representatives from the participating states or organizations. Once adopted, they are
typically subject to ratification or accession by the participating states, which means that they become
legally binding only when they are accepted by a certain number of states or organizations.

International conventions can create new legal rules or modify existing ones, and they can also provide
mechanisms for enforcement and dispute resolution. They are often seen as an important tool for
promoting cooperation and coordination among states on a wide range of issues.

Some examples of international conventions include the United Nations Convention on the Law of the Sea,
the Convention on the Elimination of All Forms of Discrimination Against Women, and the Paris Agreement
on Climate Change.

Customs as a source of International Law.

Customs are another important source of international law. Customary international law refers to unwritten
rules of international law that have emerged over time through consistent and widespread practice by
states, and that are considered legally binding.

Customary international law is based on the idea that certain practices and behaviors of states are
accepted as legal norms, and that these norms become binding on all states over time. In order for a
customary norm to be recognized as legally binding, it must meet two criteria: the practice must be
consistent and widespread, and it must be accompanied by a sense of legal obligation, or opinio juris.

Customary international law can cover a wide range of topics, including human rights, international
humanitarian law, and the law of the sea. Some examples of customary international law include the
principle of non-intervention in the internal affairs of states, the prohibition on torture, and the principle of
state immunity.

While customary international law is not based on a formal written agreement like a treaty, it is still
considered binding on states. However, the identification and development of customary international law
can be a complex and contested process, as it can be difficult to determine whether a particular practice
has reached the threshold of customary law.

Elements of international customs as a source of international law.

There are two main elements of international customs as a source of international law:

1. Consistent and widespread practice: A customary rule of international law is based on the
consistent and widespread practice of states. This means that the practice must be repeated over
time by a significant number of states. The more widespread the practice, the stronger the evidence
for the existence of a customary rule.
 2. Opinio juris: In addition to consistent and widespread practice, the existence of a customary rule of
international law requires that states believe that the practice is legally required, or that there is a
sense of legal obligation. This is known as opinio juris, or the belief that the practice is legally
binding.

To establish the existence of a customary rule, it is necessary to show that both of these elements exist.
This can be done through a variety of evidence, including state practice, statements by states and
international organizations, and judicial decisions.

It is important to note that not all consistent and widespread practices of states will give rise to a
customary rule of international law. In order for a customary rule to be recognized as legally binding, it
must meet the dual requirement of consistent practice and opinio juris.

State Practice in international law with case reference.

State practice is an important element of customary international law. State practice refers to the actual
behavior of states in international relations, including their actions and omissions. State practice can
include a wide range of activities, such as diplomatic communications, military activities, and the adoption
of domestic laws and regulations.

A classic example of state practice in the development of customary international law is the Lotus case. In
this case, which was decided by the Permanent Court of International Justice in 1927, a French vessel
collided with a Turkish vessel in the high seas. The French officer was charged with manslaughter by the
Turkish authorities, and France argued that Turkey did not have jurisdiction to prosecute the officer
because the collision occurred in international waters. The court held that Turkey did have jurisdiction, but
also stated that the principle of international law is that states are free to act in any way they choose, as
long as they do not violate a specific rule of international law. This principle became known as the Lotus
principle, and it is now recognized as a customary rule of international law.

State practice is also important in the development of international human rights law. For example, the
widespread condemnation of apartheid in South Africa by the international community, including through
the adoption of economic sanctions and the imposition of a UN arms embargo, was a clear example of
state practice in support of the principle of non-discrimination and equality. This practice helped to
establish the principle of racial equality as a customary rule of international law.

Uniformity and consistency of state practice in international law with case reference.

Uniformity and consistency of state practice is an important element in the formation of customary
international law. The more consistent and widespread the practice of states, the stronger the evidence for
the existence of a customary rule of international law.
One example of uniform and consistent state practice in international law is the prohibition on the use of
force. This prohibition is recognized as a customary rule of international law, and is reflected in the UN
Charter. State practice in support of this rule includes the widespread condemnation of aggressive wars, as
well as the recognition of the right to self-defense. In the Nicaragua case (1986), the International Court of
Justice (ICJ) held that the prohibition on the use of force is a customary rule of international law, based on
the consistent and uniform practice of states.

Another example of uniform and consistent state practice is the principle of diplomatic immunity. This
principle is based on the long-standing practice of states to grant immunity to diplomatic agents, as well as
the recognition of this practice in international treaties and conventions. The consistent and widespread
practice of states in support of this principle is reflected in the Vienna Convention on Diplomatic Relations
(1961), which codified and expanded the existing customary rule.

Overall, the uniformity and consistency of state practice is an important factor in the development and
recognition of customary international law. The more consistent and widespread the practice of states, the
stronger the evidence for the existence of a customary rule of international law.

Duration of state practice in international law with case reference.

The duration of state practice is an important element in the formation and recognition of customary
international law. The longer and more consistent the practice of states, the stronger the evidence for the
existence of a customary rule of international law.

One example of state practice with a long duration in international law is the principle of the freedom of
the seas. This principle holds that the high seas beyond the territorial waters of any state are open to all
states and can be used for navigation, fishing, and other peaceful purposes. The principle of the freedom of
the seas has been recognized and practiced by states for centuries, and is reflected in various international
conventions and treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS) (1982).

Another example of state practice with a long duration is the prohibition on torture. The prohibition on
torture is recognized as a customary rule of international law, and is reflected in various international
conventions and treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984). The practice of states in support of this prohibition dates back to the 19th
century, and has been reinforced by various international declarations and instruments.

Overall, the duration of state practice is an important factor in the recognition and development of
customary international law. The longer and more consistent the practice of states, the stronger the
evidence for the existence of a customary rule of international law.
Opinio Juris in international law with case reference.

Opinio juris, or the sense of legal obligation, is a critical element in the formation and recognition of
customary international law. Opinio juris refers to the belief of states that a particular practice is legally
required and necessary in the conduct of international relations.

One example of opinio juris in international law is the prohibition on the use of force. The prohibition on
the use of force is recognized as a customary rule of international law, and is reflected in various
international conventions and treaties, such as the United Nations Charter (1945). The practice of states in
support of this prohibition, combined with their belief that the prohibition is legally required and necessary,
is evidence of opinio juris. For example, in the Nicaragua case (1986), the International Court of Justice (ICJ)
held that the prohibition on the use of force is a customary rule of international law, based in part on the
consistent practice of states and their belief in the legal obligation to respect the prohibition.

Another example of opinio juris in international law is the principle of state immunity. State immunity
refers to the immunity of a state from the jurisdiction of foreign courts and the execution of their decisions.
The principle of state immunity is recognized as a customary rule of international law, and is reflected in
various international conventions and treaties, such as the Convention on Jurisdictional Immunities of
States and Their Property (2004). The practice of states in support of this principle, combined with their
belief that the principle is legally required and necessary, is evidence of opinio juris. For example, in the
case of Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (2002), the ICJ held
that the principle of state immunity is a customary rule of international law, based in part on the consistent
practice of states and their belief in the legal obligation to respect the principle.

Overall, opinio juris is a critical element in the formation and recognition of customary international law,
and is often evidenced by the consistent practice of states and their belief in the legal obligation to respect
a particular rule of international law.

Generality of the practice in international law.

In the context of international law, generality of practice refers to the widespread and consistent behavior
of states that is considered as evidence of the existence of a customary international law rule. It implies
that the practice in question is not limited to a particular state or group of states, but is shared by a large
number of states.

For example, the prohibition against torture is considered to be a customary international law rule due to
its widespread acceptance and practice by states around the world. The International Court of Justice
recognized the generality of this practice in its Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, stating that "the prohibition of torture has become one of the fundamental values of the
international community and it is a norm of customary international law."

Similarly, the principle of diplomatic immunity is another example of a customary international law rule
that is based on generality of practice. The immunity of diplomats has been recognized and observed by
states for centuries, and is now considered a well-established norm of customary international law.

Position of customs in the contemporary context.

Customs continue to be an important source of international law in the contemporary context, along with
treaties and general principles of law. However, the role of customs has evolved over time, and it is no
longer the sole or even the primary source of international law.

One of the main challenges facing customs as a source of international law in the contemporary context is
the changing nature of international relations. The global community is becoming increasingly diverse, with
more actors involved in the international system than ever before, including non-state actors such as
multinational corporations, civil society groups, and international organizations. This diversity makes it
more difficult to establish a widespread and consistent practice among states that can be considered
evidence of customary international law

Another challenge is the rapid pace of technological change and globalization, which is making it harder for
customary international law to keep up with the evolving realities of international relations. As new
technologies emerge and the world becomes more interconnected, the traditional practice-based approach
to customary international law may be less effective in addressing emerging issues and challenges.

Despite these challenges, customs remain an important source of international law, particularly in areas
where there is no treaty or other established legal framework. Customs can also serve as a useful
supplement to treaty-based law, providing additional guidance and support in interpreting and applying
treaty provisions. Overall, while the role of customs in the contemporary context may be more limited than
in the past, it remains an important and valuable source of international law.

General principles of law recognized by civilized nations with case reference.

General principles of law recognized by civilized nations (GPL) is one of the sources of international law,
recognized as a supplementary source to treaty and custom. These principles are derived from the legal
systems of various nations, which are regarded as representing the basic legal concepts and values that are
shared by the majority of states.

One example of the GPL in international law can be found in the Nuremberg Trials after World War II. The
trials were held to prosecute individuals responsible for war crimes, crimes against peace, and crimes
against humanity committed during the war. The Tribunal identified a set of principles, including the
principle of individual criminal responsibility, which became part of the GPL recognized by civilized nations.
These principles were later codified in the International Criminal Court (ICC) Statute and other international
legal instruments.

Another example of the GPL in international law can be found in the case of Barcelona Traction, Light and
Power Company, Limited (Belgium v. Spain) in 1970. The case involved a dispute between Belgium and
Spain over the expropriation of the Barcelona Traction Company, which was incorporated in Canada but
had a majority of Belgian shareholders. The International Court of Justice (ICJ) held that the GPL includes
the principle of protection of foreign investment, which is a fundamental principle of modern international
law.

Overall, the GPL is an important source of international law, providing a framework for the development
and interpretation of international legal norms. While these principles may not be as concrete or specific as
those found in treaties or custom, they nonetheless represent a fundamental set of values and concepts
that are shared by the majority of states in the international community.

Judicial Decisions in International Law.

Judicial decisions, also known as case law or precedent, are one of the sources of international law. They
refer to the decisions made by international courts and tribunals, as well as national courts that apply or
interpret international law.

International judicial decisions can have a significant impact on the development and interpretation of
international law. They can establish new legal principles, clarify existing rules, and help to resolve disputes
between states or other international actors.

For example, the International Court of Justice (ICJ) has issued many important judgments that have
contributed to the development of international law. One of the most famous examples is the ICJ's decision
in the case of Nicaragua v. United States, where the Court found the U.S. government guilty of violating
international law by supporting the Contras in their armed conflict against Nicaragua. The ICJ's decision
established important principles of customary international law, such as the prohibition on the use of force
and the duty to respect the sovereignty of other states.

National courts can also contribute to the development of international law through their decisions. For
example, in the case of Filártiga v. Peña-Irala, the U.S. Court of Appeals for the Second Circuit held that the
torture of a Paraguayan citizen by a Paraguayan police officer was a violation of international law, even
though there was no treaty or customary rule specifically prohibiting torture. The Filártiga decision helped
to establish the principle that human rights abuses can be addressed through the application of
international law in domestic courts.
In summary, judicial decisions are an important source of international law that can help to clarify and
develop the rules that govern relations between states and other international actors.

Role of ICJ for creating new law with case reference.

The International Court of Justice (ICJ) plays a significant role in the development of international law by
creating new legal principles through its decisions. The ICJ, which is the principal judicial organ of the
United Nations, has the authority to settle legal disputes submitted to it by states and to provide advisory
opinions on legal questions referred to it by UN organs and specialized agencies.

One of the most famous examples of the ICJ creating new law through its decisions is the 1970 Barcelona
Traction case (Belgium v. Spain). In this case, the ICJ recognized that a corporation had a legal personality
separate from its shareholders and that this personality could be protected under international law. This
principle was new and had not been recognized in any international legal instrument prior to the ICJ's
decision.

Another example is the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. In
this opinion, the ICJ declared that the threat or use of nuclear weapons would generally be contrary to the
principles of international humanitarian law, even in self-defense. This opinion contributed to the
development of the legal principle of the prohibition of the use of nuclear weapons, which has since been
reflected in various international treaties and conventions.

Overall, the ICJ plays an important role in the development of international law by creating new legal
principles through its decisions and providing guidance on the interpretation and application of existing
legal rules.

The teachings of most highly qualified publicists.

The teachings of the most highly qualified publicists refer to the works of eminent jurists and legal scholars
in the field of international law. These works, although not legally binding, are considered a source of
international law under Article 38(1)(d) of the Statute of the International Court of Justice.

The term "most highly qualified publicists" is not precisely defined, but it generally refers to legal scholars
who are recognized as experts in the field of international law. Their opinions, as expressed in legal
treatises, textbooks, and articles, are considered authoritative and influential in the development of
international law.

The teachings of the most highly qualified publicists can be used to clarify or interpret the meaning of
existing international law, or to provide guidance in the development of new international norms. They can
also be used as evidence of customary international law, particularly when there is a widespread and
consistent opinion among legal scholars on a particular issue.
One example of the teachings of the most highly qualified publicists being cited by the International Court
of Justice is the case of Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain). In that
case, the Court referred to the opinions of several prominent legal scholars to support its conclusion that a
corporation had standing to bring a claim against a state under international law. The Court noted that
these opinions were evidence of a developing trend in international law, and that they supported the
Court's own interpretation of the relevant legal principles.

Juristic works.

Juristic works refer to scholarly writings by legal scholars, experts, and practitioners. These works provide
interpretations, analysis, and critiques of various legal concepts and principles in international law. Juristic
works may include books, articles, treatises, commentaries, and reports. They are considered as one of the
sources of international law, particularly in the absence of other more specific sources. The opinions and
interpretations of legal experts may influence the development of customary international law or the
interpretation of international treaties. However, it is important to note that the views expressed in juristic
works are not binding and are subject to debate and criticism by other legal scholars and practitioners.

Status of juristic works in the contemporary context with case reference.

In the contemporary context, juristic works continue to play an important role in the development and
interpretation of international law. These works are often cited and relied upon by international tribunals
and other legal authorities as a source of legal authority.

For example, in the case of Maritime Delimitation in the Black Sea (Romania v. Ukraine), the International
Court of Justice (ICJ) referred to various juristic works, including commentaries and treatises, to support its
decision on the relevant principles of international law. In its judgment, the ICJ cited the works of several
legal scholars to establish the principles of international law relevant to the dispute, such as the doctrine of
uti possidetis and the principle of equity.

Similarly, in the case of Prosecutor v. Tadic before the International Criminal Tribunal for the former
Yugoslavia (ICTY), the tribunal relied on various juristic works to establish the definition and scope of war
crimes and crimes against humanity under international law.

Overall, while juristic works are not binding sources of international law, they can be influential in shaping
the interpretation and application of legal principles by international tribunals and other legal authorities.

Additional Sources of international law.

In addition to the traditional sources of international law such as treaties, custom, and general principles of
law, there are other sources of international law that have emerged in the contemporary context. These
include:
 1. Soft law: Soft law refers to non-binding instruments, such as declarations, guidelines, and codes of
conduct, that are not legally enforceable but are influential in shaping state behavior and
expectations. Soft law can provide guidance on best practices and can help create norms that
eventually become customary law.
2. Resolutions and decisions of international organizations: Resolutions and decisions of international
organizations, such as the United Nations General Assembly or the International Maritime
Organization, can have legal significance and be recognized as a source of international law. While
these instruments are not binding on states, they can create legal obligations and expectations.
3. Jus cogens: Jus cogens refers to peremptory norms of international law that are considered to be of
higher legal authority than other norms. These norms, such as the prohibition of torture or
genocide, are considered to be non-derogable and cannot be altered by treaty or customary law.
4. Equity: Equity refers to the principles of fairness and justice that are recognized as a source of
international law. Equity can be invoked to resolve disputes where there is no clear rule of law or to
mitigate the harshness of a strict application of the law.
5. Human rights law: Human rights law has emerged as a distinct source of international law,
grounded in universal values and norms. Human rights treaties and customary law provide a
framework for protecting the rights and dignity of individuals, and human rights law has become an
increasingly important source of international legal norms and obligations.

Status of the Resolution of International Organisations.

Resolutions of international organizations can also serve as a source of international law, particularly when
they reflect the consistent practice of states and are accepted as authoritative interpretations of
international law. However, unlike treaties and customary international law, resolutions of international
organizations are not legally binding on states unless they have expressly agreed to be bound by them.

Some resolutions of international organizations may still carry significant political weight and influence
state behavior, even if they are not legally binding. For example, United Nations Security Council resolutions
are often seen as politically influential, and states may feel pressure to comply with them even if they are
not legally binding.

In some cases, international organizations may have the power to make binding decisions that are
considered legally binding on their member states. For example, the European Court of Justice can issue
binding decisions on member states of the European Union, and the decisions of the World Trade
Organization's dispute settlement mechanism are binding on member states that have agreed to them.
Significance of soft international law.

Soft international law refers to non-binding international norms, principles, and guidelines that do not
create legal obligations but have moral or political significance. Soft international law has become
increasingly important in the contemporary context because it provides a flexible and adaptable means of
addressing new and emerging issues that are not covered by traditional international legal instruments.

Soft international law can play a significant role in shaping state behavior and influencing the development
of international law. It can serve as a basis for the creation of new international legal norms, as well as
provide guidance for interpreting and applying existing international legal rules. Soft law can also help to
promote cooperation and coordination among states, as well as between states and non-state actors, such
as international organizations, civil society groups, and the private sector

Examples of soft international law include the Universal Declaration of Human Rights, the Rio Declaration
on Environment and Development, and the Guiding Principles on Business and Human Rights. While soft
law is not legally binding, it can still have significant normative and practical effects. For example, the
Guiding Principles on Business and Human Rights have been widely adopted by corporations as a
framework for corporate social responsibility, and have influenced the development of national and
international legal norms in this area.

Overall, soft international law is an important tool for addressing complex and evolving global challenges,
and can complement and reinforce traditional international legal instruments.

Role of equity with case reference.

Equity is a legal principle that allows for fairness and justice to be applied in situations where strict
application of the law may lead to unjust or inequitable results. In international law, equity is recognized as
a supplementary source of law.

One notable case where equity played a role in international law is the "Rainbow Warrior" case (New
Zealand v. France) in 1990. The case concerned the sinking of the Greenpeace ship Rainbow Warrior by
French intelligence agents in Auckland, New Zealand in 1985. New Zealand brought the case before the
International Court of Justice (ICJ), arguing that France had violated its sovereignty and the principle of
peaceful settlement of disputes.

In its judgment, the ICJ applied the principle of equity and stated that "it is an essential principle of
international law that even a sovereign state is not entitled to benefit from its own wrong". The court found
that France had breached its obligations under international law and ordered it to pay compensation to
New Zealand.
The case demonstrates the role of equity in international law, where it can be used to ensure that justice is
done and that states are held accountable for their actions, even in situations where strict application of
the law may not be sufficient.

Role of global NGOs and Media in international law-making.

Global NGOs (Non-Governmental Organizations) and the media play an important role in shaping
international law and its development. NGOs, which are organizations independent of any government and
work on various issues such as human rights, the environment, and humanitarian aid, often participate in
international conferences and forums where they have the opportunity to provide input and feedback on
proposed international laws and policies. Their involvement can influence the final outcome of these laws
and policies.

Similarly, the media plays a critical role in bringing attention to international issues and violations of
international law, which can lead to public pressure on governments to take action. The media can also
help to raise awareness of new international laws and treaties and their potential impact on individuals and
societies.

One example of the role of global NGOs and the media in international law-making is the development of
the 1997 Ottawa Treaty, which banned the use of anti-personnel landmines. NGOs and the media played a
crucial role in raising public awareness of the issue and pressuring governments to participate in
negotiations, ultimately leading to the adoption of the treaty.

Another example is the involvement of NGOs and the media in the development of the United Nations
Framework Convention on Climate Change (UNFCCC) and its subsequent agreements such as the Paris
Agreement. NGOs played an important role in advocating for strong action on climate change, and the
media helped to raise awareness and build public support for these efforts.

Overall, the involvement of global NGOs and the media in international law-making can help to ensure that
the perspectives and concerns of a wide range of stakeholders are considered, leading to more effective
and legitimate international laws and policies.

Power and politics in international law-making process.

Power and politics play a significant role in the international law-making process. International law is
created through the consent of states, and the power dynamics among states can influence the outcome of
negotiations and the content of international agreements. More powerful states often have greater
influence and can shape the terms of the agreement in their favor.

For example, the United States has significant economic and military power, which has allowed it to exert
influence over the creation of international agreements such as trade agreements and security treaties.
Other states may have less power and may have to make concessions to more powerful states in order to
achieve their objectives.

In addition to the power dynamics among states, domestic politics can also play a role in the international
law-making process. Domestic constituencies may pressure their governments to take certain positions in
negotiations or to reject certain agreements. This can sometimes lead to gridlock or failed negotiations.

Overall, the power and politics in the international law-making process highlight the importance of
diplomacy, negotiation, and compromise. International law is a reflection of the interests and values of the
international community, and it is only through cooperation and consensus-building that effective and
meaningful international agreements can be reached.

Jus cogens in international law with case reference.

Jus cogens refers to a peremptory norm of international law from which no derogation is permitted. This
means that no state can enter into a treaty or take any action that conflicts with these norms, which are
considered fundamental to the international legal system. Some examples of jus cogens norms include
prohibitions against genocide, slavery, torture, and aggressive war.

One case reference involving jus cogens is the International Court of Justice's (ICJ) 1970 ruling in the
Barcelona Traction case. The case concerned a Canadian company, Barcelona Traction, Light and Power
Company, which had invested in a Spanish company and subsequently had its assets nationalized by the
Spanish government. Canada brought a case against Spain to the ICJ, arguing that the expropriation
violated international law.

In its ruling, the ICJ recognized the existence of jus cogens norms and held that certain fundamental
principles of international law, such as the prohibition on the use of force, were part of jus cogens. The
Court held that the Spanish government's actions in nationalizing Barcelona Traction's assets were in
violation of these fundamental principles and international law.

This case highlights the importance of jus cogens norms in international law, as they provide a strong basis
for holding states accountable for violating fundamental principles of the international legal system.

Codification in international law.

Codification in international law refers to the process of collecting and systematizing rules and principles of
international law. It involves the drafting, adoption, and dissemination of international legal norms by
international organizations, such as the United Nations, or by specialized agencies, such as the International
Court of Justice.
The purpose of codification is to promote the clarity, consistency, and predictability of international law,
and to enhance the effectiveness of international legal regimes. The process of codification can take many
forms, including the creation of treaties, conventions, model laws, and other legal instruments.

One example of codification in international law is the Vienna Convention on the Law of Treaties, which
was adopted by the United Nations in 1969. The Convention sets out rules and principles for the formation,
interpretation, and termination of treaties between states, and has been widely adopted and incorporated
into the legal systems of many countries.

Another example is the United Nations Convention on the Law of the Sea, which was adopted in 1982 and
codified the customary international law of the sea. The Convention has been ratified by over 160 states
and provides a comprehensive framework for the management and protection of the world's oceans and
marine resources.

Overall, codification plays an important role in the development and evolution of international law,
providing a framework for the resolution of disputes and the promotion of peace and stability among
nations.

Questions about sources of law

Which article of the ICJ statute concerns sources of law and what is the content of the article?

Article 38 of the Statute of the International Court of Justice concerns the sources of international law. The
content of the article is as follows:

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 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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
What are the different sources of law and which sources are main in the law-making process of
international law?

There are several sources of international law recognized under Article 38 of the Statute of the
International Court of Justice. The main sources of law are:

1. Treaties: Agreements between states, including bilateral and multilateral treaties, which create legal
obligations and may establish rules of customary international law.
2. Customary International Law: Consistent and general practice of states, recognized as legally
binding, and accompanied by the belief that such practice is required by law.
3. General Principles of Law: Principles that are recognized by national legal systems and have been
accepted as part of the international legal system.
4. Judicial Decisions and teachings of publicists: Judicial decisions and scholarly works may be relied
upon as persuasive sources of law.

The relative importance of each source of law may vary depending on the particular area of international
law in question. For example, in areas such as human rights law, customary international law and general
principles of law may play a more significant role than treaties. In contrast, in areas such as trade law,
treaties may be the primary source of law.

What do you mean by the international conventions? What is a law-making treaty and obligation
creating treaty?

International conventions refer to agreements between two or more states that establish legal obligations
between them. These agreements can take various forms, such as treaties, protocols, and conventions.

A law-making treaty is a treaty that creates new legal norms that did not previously exist in international
law. These treaties establish new legal principles or rules that are binding on the signatory states.

An obligation-creating treaty, on the other hand, is a treaty that imposes obligations on the signatory
states. This can include obligations to refrain from certain actions or to take certain actions to achieve a
particular goal. Such treaties can be further categorized as bilateral or multilateral depending on the
number of signatories.

Why do states respect law-making treaties as an obligation?

States respect law-making treaties as an obligation because they have voluntarily agreed to be bound by
the terms of the treaty. When states sign and ratify a treaty, they are expressing their consent to be legally
bound by the obligations set out in the treaty. This means that states are obligated to comply with the
provisions of the treaty in good faith, and failure to do so would be a breach of their international legal
obligations.
Moreover, treaties are considered to be the most authoritative and binding source of international law, as
they reflect the explicit consent of the states that have ratified them. The principles and norms established
by these treaties are often recognized as customary international law and can influence the development
of future treaties.

In addition, the importance of upholding treaty obligations is based on the fundamental principle of pacta
sunt servanda, which means that agreements must be kept. This principle is a cornerstone of the
international legal system and provides a basis for the stability and predictability of international relations.

What is the importance of conventions as a source of international law in the present context?

Conventions, also known as treaties, are an important source of international law in the present context for
several reasons:

1. Creation of Legal Obligations: When states sign and ratify a convention, they agree to be legally
bound by its provisions. This creates an obligation on the part of the state to implement and enforce
the provisions of the convention. This is important because it ensures that states take international
law seriously and that there are consequences for non-compliance.
2. Consistency and Uniformity: Conventions provide a basis for the development of consistent and
uniform rules that can be applied across different states. This is particularly important in areas such
as human rights, where universal standards are necessary to protect the rights of individuals
regardless of their location.
3. Clarification of Existing Law: Conventions can also help to clarify existing international law,
particularly in areas where there may be uncertainty or disagreement about the scope or meaning
of a particular rule. For example, the 1982 United Nations Convention on the Law of the Sea helped
to clarify the rights and responsibilities of states in the use of the world's oceans.
4. Development of New Law: Conventions can also contribute to the development of new
international law in areas where there may be a gap in existing law or where new challenges require
new rules. For example, the 2015 Paris Agreement on climate change established a new framework
for addressing global climate change and reducing greenhouse gas emissions.

Overall, conventions are an important tool for the development and implementation of international law,
and play a critical role in promoting cooperation and collaboration among states.

What is international custom and customary international law?

International custom refers to a general practice or behavior of states that is widely accepted as legally
binding, and is followed out of a sense of legal obligation rather than convenience or expediency. It is an
unwritten source of international law and is formed by the consistent and general practice of states over
time, accompanied by a belief in the existence of a legal obligation to follow such practice (known as opinio
juris).

Customary international law is a legal concept that derives from international custom. It refers to the body
of unwritten rules and norms that have developed over time through consistent and general practice by
states, and are recognized as legally binding by the international community. Customary international law is
often used in cases where there is no clear treaty or other formal agreement, and is considered to be one
of the most important sources of international law.

When a international custom becomes or may be regarded as a principle of international law?

An international custom becomes or may be regarded as a principle of international law when it is

established as a general practice accepted as law by states and accompanied by a sense of legal obligation
or opinio juris. In other words, a custom must be widely accepted by states as a legally binding norm, rather
than just a matter of convenience or habit. The International Court of Justice (ICJ) has explained that a
customary rule must be both "extensive and virtually uniform" in practice and have been accepted by
states as legally binding.

How do you explain ‘opinio juris’ as a constituent element for international customs to be international
law? Answer with reference to the decision of Continental Shelf Case.

Opinio juris is one of the two essential elements for the formation of customary international law. It refers
to the belief that a certain practice is legally obligatory, that is, the subjective element of a customary
practice. In other words, opinio juris is the conviction that a particular behavior or practice is required by
law rather than being a mere matter of choice or preference.

In the Continental Shelf Case (1969), the International Court of Justice (ICJ) held that opinio juris is crucial
in determining whether a customary rule of international law has emerged. The ICJ stated that "it is only
the general practice accepted as law, that constitutes a rule of customary international law. The States
concerned must therefore feel that they are conforming to what amounts to a legal obligation."

In this case, the ICJ found that the customary rule of international law regarding the delimitation of the
continental shelf required both a consistent and uniform practice by states and opinio juris. The Court
stated that the practice of states must be such as to show a general recognition of a rule of law, and that
this recognition must be reflected in their behavior. In other words, the behavior of states must be driven
by a sense of legal obligation or opinio juris.

Therefore, the opinio juris is an important element for the establishment of customary international law, as
it indicates that states consider a certain practice to be legally required, rather than simply a matter of
convenience or tradition.
What is the status of international customs as a source of international law-making in the contemporary
context? What are factors diminishing the importance of customs as a source of international law in
contemporary context?

International customs continue to be a significant source of international law in the contemporary context.
However, its importance has been diminished by several factors.

One factor is the increasing number of international conventions and treaties, which have been developed
and ratified by states. These agreements provide clearer and more specific rules on particular issues than
customary international law, which is often vague and difficult to ascertain. As a result, states tend to rely
more on treaty law than customary law.

Another factor is the increasing role of international organizations, which often promote and enforce the
application of treaty law rather than customary law. This is because international organizations are created
through treaties, and they tend to prioritize the implementation and development of those treaties.

Lastly, the globalization of trade and commerce has led to the growth of transnational law, which includes
norms and rules developed by non-state actors, such as multinational corporations and civil society
organizations. These norms and rules may override or supplement customary international law.

Despite these factors, international customs remain a relevant source of international law. This is evident in
recent cases before the International Court of Justice (ICJ), where the Court has relied on customary
international law to resolve disputes, such as the Jurisdictional Immunities of the State case.

What do you mean by the ‘general principles of law recognized by the civilized nations? What is the
reason behind accommodating the principles of domestic law in settling international disputes.

The "general principles of law recognized by civilized nations" refer to legal principles that are universally
recognized and applied by the national legal systems of various countries. These principles are considered
to be a source of international law when they are applied consistently by international tribunals or by
agreement among states.

The reason behind accommodating the principles of domestic law in settling international disputes is that it
provides a common framework that is recognized and accepted by all parties. This framework can help to
resolve disputes in a fair and just manner, ensuring that all parties are treated equally under the law.
Additionally, incorporating domestic legal principles can help to ensure that decisions are based on well-
established legal principles, rather than on arbitrary or ad hoc considerations.
What are the subsidiary sources of international law? Does ICJ create new law? Give some examples.

The subsidiary sources of international law are the sources that can be resorted to in the absence of the
primary sources of international law. These include the teachings of the most highly qualified publicists,
judicial decisions, and the writings of scholars.

The International Court of Justice (ICJ) does not create new law, but it can clarify or develop existing
principles of international law through its judicial decisions. ICJ decisions can contribute to the formation of
customary international law, as they demonstrate the state practice and opinio juris of the parties involved
in the case.

For example, in the case of Nicaragua v. United States, the ICJ clarified the customary international law
principle of non-intervention by states in the affairs of other states. The ICJ held that the United States had
violated this principle by supporting and arming the Contra rebels in Nicaragua, and by mining Nicaragua's
ports. The decision contributed to the development of the customary international law principle of non-
intervention.

Similarly, in the case of Legality of the Threat or Use of Nuclear Weapons, the ICJ clarified the principles of
international humanitarian law that apply to the threat or use of nuclear weapons. The ICJ held that the
use of nuclear weapons is generally illegal under international humanitarian law, but that there may be
exceptions in extreme circumstances of self-defense. The decision contributed to the development of the
customary international law principles of humanitarian law and the law on the use of force.

What are other sources that may have influence on international law-making?

In addition to the primary and subsidiary sources of international law, there are several other sources that
may have an influence on international law-making. These sources include:

1. Morality and ethics: Moral and ethical considerations may have an impact on the development and
interpretation of international law.
2. Diplomatic correspondence: Diplomatic correspondence between states may provide evidence of
customary international law or the formation of treaties.
3. Judicial decisions and legal writings: Decisions of national courts and legal writings of experts may
influence the development and interpretation of international law.
4. Public opinion: Public opinion and pressure from non-governmental organizations and civil society
groups can impact the creation and implementation of international law.
5. Political and economic power: Political and economic power can influence the negotiation and
implementation of international law, particularly in cases where powerful states may attempt to
impose their will on weaker states.
It is important to note that while these sources may influence the development of international law, they
are not considered formal sources and do not have the same legal weight as primary and subsidiary
sources.

The International Court of Justice (ICJ) does not create new law, but rather applies and interprets existing
international law in cases that come before it. However, in some cases, the ICJ's decisions may have an
impact on the development of international law by clarifying the meaning or application of existing
principles or by providing guidance on how to interpret and apply those principles. Examples of ICJ
decisions that have had a significant impact on the development of international law include the Corfu
Channel Case, the Nicaragua Case, and the Legality of the Threat or Use of Nuclear Weapons Case.

What is the purpose of codification of international law?

The purpose of codification of international law is to create a systematic and organized set of rules and
principles that can be easily understood and applied by the international community. It involves the
formulation and adoption of international conventions, treaties, and other instruments that codify and
clarify the existing rules and principles of international law.

Codification aims to promote the uniformity and consistency of international law, as well as to enhance its
effectiveness and efficiency in resolving disputes and promoting cooperation among states. It also helps to
fill gaps and clarify ambiguities in existing international law, and to adapt it to changing circumstances and
new developments in the international community.

The process of codification is typically carried out by international organizations such as the United Nations,
which have the expertise, resources, and mandate to undertake the necessary research, consultation, and
negotiation to develop and adopt international instruments. The International Law Commission, a
subsidiary body of the United Nations General Assembly, is specifically charged with the task of promoting
the codification and progressive development of international law.