Natural Law

Natural law is historically linked to the concept of moral law and to religious influences. It
was developed on the basis of the notion that human beings have certain inalienable rights
and entitlements that exist regardless of their recognition by States, even if they are not
enshrined in written texts, and that these rights are natural and irrevocable. Such rights are
supported by the conviction that each human being enjoys a specific dignity.

The proponents of the theory of natural law point out that rights may exist outside any formal
codification, resulting from moral obligations inscribed in the conscience of individuals.
They have used this concept to counter established rules of written law. An important
historical example is the emphasis that was placed on moral law in the fight to abolish
slavery.
International law has come to formally recognize the existence of such unwritten peremptory
norms, against which no derogation is permitted. These are jus cogens norms.
Positive Law
Law is a set of norms and standards that are usually established by the authorities who are in
charge of representing the community that the laws are meant to serve. The laws may be in
the form of constitutions, decrees, precedents, and so on. In the case of international law, it
describes formal interstate agreements, international conventions, and other treaties that
reflect the consent or will of States to be bound by such laws. Positive law describes the
content of these texts.
Sources of International law

The sources problem

International law’s nature means that the sources of international law are much more diverse
than those found in national legal systems. International law evolves directly through the
conduct of States. International lawyers must distinguish between those types of State activity
that will create international law from those which will not. In addition, international lawyers
must be able to identify the precise legal rules that such behaviour has created.

Established sources of international law

KEY INSTRUMENT

Article 38(1), ICJ Statute (1945) : ‘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

recognised by the contesting States;

(b)international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognised by civilised 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 a subsidiary means for the
determination of rules of law.’

Customary international law (CIL)

The origins of international law are found in customary international law (CIL) and it is the
default source in the absence of applicable treaty law.

KEY DEFINITION: Customary international law (CIL)

CIL has been defined as ‘a constant and uniform usage, accepted as law’. (Asylum Case
(1950) ICJ Rep 266, 277).

CIL is well suited to the decentralised structure of the international legal system because it
enables international law to evolve directly from the conduct of States.

The two essential elements of CIL: state practice and opinio juris

State practice (material element)

Any State activity can constitute State practice for the purpose of creating CIL. Examples
include: official public statements, physical actions, diplomatic correspondence, treaty-
making, national legislation and the conduct of States in International Governmental
Organisations (IGOs). However, for State practice to form the basis of a CIL rule much will
depend on the circumstances of a given case and the nature of the legal issue in question.

Certain conditions must be satisfied if the practice is to be capable of providing the basis for a
CIL rule:

State practice must be extensive. A significant number of States, including those States
whose interests would be specially affected by the creation of a CIL rule, need to participate
in the practice. State practice must be ‘both extensive and uniform’ (North Sea Continental
Shelf Cases (1969)); and State practice should amount to a consistent pattern of behaviour. It
should be ‘generally consistent’ (Nicaragua Case (1986)); and a sufficient period of time
must have passed in order to show that the above conditions are satisfied.

Opinio juris (the psychological element)

KEY DEFINITION: Opinio juris

It is necessary that States believe that they are under a legal obligation to follow a
particular practice.

The requirement that States practice is accepted as law is vitally important as it is impossible
to distinguish between practices which arise from habit or courtesy (‘usages’) and those
practices which States are legally obligated to follow. But how do we prove that States feel
bound to follow a particular practice? States are artificial legal persons. They act through
national governments which rarely make their intentions clear. Where evidence of the
intentions of particular States is unclear the instruments of IGOs may reveal whether States in
general consider themselves under a legal obligation to behave in a certain way. For example:

In the Nicaragua Case (1986), the ICJ decided that the provisions of UN Declaration on the
Principles of International Law concerning Friendly Relations (GA Res. 2625 (XXV) (1970))
could be used to satisfy the opinio juris required to support the existence of a CIL rule
concerning the prohibition on the use of force.

The persistent objector rule

The persistent objector rule operates thus: if a State objects to a new CIL rule from the
moment the rule is established and it maintains its objection the State will not be bound by
that particular CIL rule.

Treaties

KEY DEFINITION: Treaties

Treaties are legally binding agreements that commit the parties to follow a particular
course of conduct by reference to rights and/or obligations.

Treaty law will be considered further later in this text (Chapter 3). Here we are only
concerned with treaties as a source of international law.
Types of treaty

‘Treaty contracts’ are often bilateral agreements or involve a small number of States. They
are usually concerned with technical or commercial matters. They create rights and
obligations for State parties in a very similar way to the way that contracts agreed between
ordinary legal persons do.

‘Law-making treaties’ are invariably multilateral agreements designed to establish or develop

international law on a range of issues. While they may create rights and obligations for State
parties, law-making treaties exist within the framework of international law. Arguably, they
possess quasi-legislative character and have the potential to develop CIL (see below).

You must remember that treaties only bind those States that are parties to them (as
they have given their express consent to the terms contained in the treaty).

The relationship between treaty law and CIL

If certain conditions are fulfilled, particular treaty provisions can influence CIL.

In the North Sea Continental Shelf Cases (1969), the ICJ set out a number of conditions that
must be established before a treaty provision can create new CIL:

 The relevant treaty provisions should be fundamentally law creating in character (they
should be ‘normative’);
 There must be very widespread and representative participation in the State practice
which must be supported by those States whose interests would be specially affected
by the treaty provisions in question
 State practice must be extensive and virtually uniform in support of the new CIL rule
in the period since the treaty in issue was adopted.

You should note the following points in situations where treaty provisions contribute to new
CIL rules:

 A State that is not a party to the treaty concerned is not made accountable to that
treaty.
 The rights and/or obligations of a State that is not a party to the treaty will flow from
CIL.

Ordinarily, a State that is a party to a treaty which creates CIL will derive its rights and/or
obligations from that treaty and not from CIL.

General principles of law

Article 38(1)(c) ICJ Statute: ‘the general principles of law recognised by civilised
nations’.

The basic notion is that a general principle of international law is some proposition of law so
fundamental that it will be found in virtually every legal system. When treaties and
customary international law fail to offer a needed international rule, a search may be
launched in comparative law to discover if national legal systems use a common legal
principle. If such a common legal principle is found, then it is presumed that a comparable
principle should be attributed to fill the gap in international law."
Examples of general principles of law: good faith, equity, truth and the impartiality of
judges. International tribunals use these principles when they cannot find authority in other
sources.

Judicial decisions

Article 38(1)(d) operates subject to Article 59, ICJ Statute. It provides that: ‘The decision of
the Court has no binding force except between the parties and in respect of the particular
case.’

This means that the ICJ does not operate according to the doctrine of stare decisis or judicial
precedent (decisions in previous cases are binding in subsequent cases on the same points of
law) which is entrenched in many national legal systems.

According to Article 38(1)(d), judicial decisions are ‘a subsidiary means for the
determination of the rules of law’. They are not formal sources of international law – they do
not create international law – instead, they identify the international law in question (the
applicable treaty law, CIL or general principles).

Judicial law making

Judges are not supposed to make the law but the distinction between law identification and
law creation is often blurred in practice. It is widely believed that judicial decisions may
create international law. For example, judicial decisions can bring about the existence of new
rules of international law by:

establishing a rule for the purpose of measuring the extent of the territorial sea (Anglo-
Norwegian Fisheries Case (1951));
recognising an IGO’s legal personality (Reparations Case (1949);

Academic writings

Academic writings are also ‘a subsidiary means for the determination of the rules of law’
under Article 38(1)(d). Consequently, they are law identifying rather than law creating.
Scholars strongly influenced the early development of international law. However, as the
doctrine of international law became more established their influence diminished. The
writings of modern scholars and practitioners continue to perform the important function of
identifying and clarifying international law.