SOURCES OF INTERNATIONAL LAW

Introduction
By “ sources of law” means the processes or means by which rules of international law
are created or determined. Because there is no International equivalent of a legislature,
the rules of international law are of a quite different nature from those of municipal
law, and are overwhelmingly derived from either or both of the two major sources
creating legally binding obligations mainly treaty and or customary I.L.
In the domestic realm, the source of a rule or law is seldom controversial.
Common law systems rely upon statutes and decisions to be found in court judgments
for evidence of the equivalent of such a rule . Civil law systems, rely upon the
appropriate legislation or codes.
It is rarely necessary in either system(that is common or civil) to inquire whether a
legal rule is in fact a legal rule and its existence if not its interpretation will be
uncontroversial. {Lecturer's Explanation: if I want to find out where Kenyan law on crime is I
go to the penal code. If it's law contract I go to the contract act e.t.c. If also Supreme court has
interpreted a rule in a particular way its application is binding upon all the subordinate courts,
hence there is no controversy on the existence of rule or its interpretation.
International law presents different problems mainly because there is no absolute
agreement about what constitute a source of International Law. International
customary law presents particular difficulties and many cases turn on whether the
existence of a particular customary rule can be actually proven.{ Lecturer's Explanation:
one has to prove the existence of a particular customary rule before the I.C.J can apply it.}
However the closest approximation to an authoritative list of relevant sources of
International law and the one that is often cited is found in Article 38 paragraph 1 of
the statutes of International Court of Justice. This provision adopted from the same
Article of the statute of the Permanent Court of International Justice which operated
under the auspices of League of Nations provides that the court whose function is to
decide "in accordance with international law" such disputes are submitted to it shall
apply:
a) International conventions whether general or particular establishing rules expressly
recognized by the contesting states.
b) International customs 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 various nations, as subsidiary means for the
determination of rules of law.
The effect of this provision is that by applying what is mentioned in paragraphs A to D,
the court will be applying International law.
Article 59 provides that the decisions of the ICJ has no binding force except between the
parties and in respect of that particular case.
Under Article 38 paragraph 2 the court is empowered to decide a case ex aequo et bono
if the parties agree thereto. The court can under this provision ignore rules which are
the product of any of the above law creating agencies(i.e. International conventions,
customs general principles e.t.c) and substitute itself as a law creating agency
depending on the agreements of the parties to the dispute before it. This is more
practical. This enables the court to avoid the pronouncement of what is technically
called a non liquet ( A situation where the court reaches a stalemate and tells the parties before
it that it cannot decide as it has no rule to rely on or Inability or impossibility to decide as no
applicable rule has been found) {Lecturer's Explanation: In the unlikely event that there is a
dispute before the court and it cannot resolve the dispute using ARTICLE 38[ 1](cannot find a
rule or convention/treaty that is applicable to the contesting state, the court also cannot find a
rule of customary I.L applicable to the dispute between the states, the court cannot find a general
principle of law recognized by the states e.t.c) the court cannot throw in the towel and send the
parties home on basis that it cannot decide. The question arises ;Why is such a situation likely to
arise? Because I.C.J does not have Compulsory jurisdiction. Parties appear before the I.C.J by
consent. This means the court can only avoid a pronouncement on non-liquet, if the parties
before allows it telling it to use its sense of justice to determine the dispute before it based on
what is just in the circumstances as there are no rule or International custom applicable.
Question; can I.C.J send the parties to the Security Council? No because the parties went
seeking a judicial decision not a political one. Article 38(2) can only be resulted to as a last
result or after Article 38(1) has been exhausted/fails to assist the court in determining the
dispute}it's good to note that the I.C.C does not have original criminal jurisdiction, it has
complementary criminal jurisdiction to municipal courts of individual state or it's law is unable
to act or does not provide a remedy.

The various sources enumerated by Art 38 of the statute may be applied

simultaneously and as such the order of enumeration does not constitute a hierarchical
order. Besides, the article is not exhaustive because on the one hand, it envisages
sources of International Law from a strictly jurisdictional perspective and on the other
hand being a text adopted almost 100 years ago ,does not take into account the
evolution of International Law.
For instance acts and decisions of International organizations which have greatly
contributed to the formation and growth of International Law are not mentioned under
Article 38.{Lecturer's Explanation: if we go strictly by the enumeration of Article 38 there is
no reference to draft articles of International law commission, also U.N General Assembly
resolutions, unilateral declarations e.t.c hence we say, being a text adopted almost 100 years
ago ,does not take into account the evolution of International Law.}
1) TREATIES/CONVENTIONS/CHARTERS /PROTOCOLS(All mean the same:
International Agreements)
Dfn: A treaty or convention is any international agreement entered into by two or more
states or other international law persons and it's governed by International law.
A distinction is normally made between law making treaties i.e. those, treaties which
lay down rules of general or universal application (multilateral treaties) and treaty
contracts that is those treaties that are entered into between two states dealing with a particular
matter between or concerning those states exclusively (bilateral treaties).
Treaty whether multilateral or bilateral, are direct source of rights and obligations for
the parties and represents a source of international ,whose importance is ever
increasing.(Nobody thought at that time that most of contemporary law is now treaty
law & rules of customary I.L are as it were reviewed)
In the event of a dispute between the parties to a treaty the terms thereof will constitute
the law to be applied by the court. Treaties may impose duties to enact legislation or
may offer areas of choice within the ambit of which states are to apply the principles
laid down therein. They may also be either confirmatory of or represent a codification
of pre existing rules of customary International Law.
For instance : The 1961 ,Vienna conventions on Diplomatic relation codifies pre-
existing rules of Customary International Law on issues such as the invariability and
immunity and privileges of diplomatic envoys.[Once treaties are ratified & adopted
they become sources of rights & obligation hence if any dispute arises they become the
rules to be applied by the court to solve them]
States or other International Law persons are bound by treaties which have been
regularly concluded and have entered into force states under the principle of Pacta
Sunt Servanda. {Extra Explanation: This principle was codified in the 1969 Vienna
Convention on the law of Treaties and the 1986 Vienna Convention on the Law of
Treaties between states and International Organizations .In addition, the Charter of
the United Nations (the "U.N Charter "), recognizes in its preamble the importance of
parties maintaining their treaty obligations.} Under this principle parties to treaties are
bound to observe and carry out the obligations in good faith. This principle which is in itself a
rule of customary International Law is the basis of positive International Law upon which the
entire superstructure of contemporary International Law depends. The function of
treaties is however limited by two factors:
1) Treaties bind the parties thereto only and not non- parties. The legal position of
non- parties cannot be modified without their consent ,that is to say that legal rights
cannot be conferred and duties imposed on them without their consent .{Lecturer's
Explanation: To 3rd parties, no way provisions of a treaty whether multilateral or not can be
applied against them. It's like a contract one must be part of the agreement. Even parties to a
treaty do so by consent. That is for example why one wonders, of what importance is to
Kenya to ratify the 1967 moon treaty when we will never send an astronaut to the moon and
 leave the treaty of migratory species of wildlife when we have Maasai Mara wild beast
migration. This because Kenya becomes party to a treaty by consent}
2) The second limitation is provided by the principle of Jus Cogens. Under this
principle the states freedom to conclude treaties is limited by the fact that parties to
a treaty cannot provide in derogation from the generally accepted principles of
International Law.
For instance parties to a treaty cannot agree to wage war against a 3rd party when it
is prohibited by general International Law or to engage in slave trade when IL
prohibits it.) States cannot agree under treaty to violate the peremptory norms (can’t
be derogated, they are binding)
Some Extra things to note: Article 2(5) which states the general principles of I.L shall form
the laws of Kenya is wrong as there is nothing like the general principles of I.L, hence it
should say rules of customary I.L as there is only rules of customary I.L. Rules of customary
I.L are automatically part of the laws of the state unless they clearly contradict an act of
parliament or judicial decisions of the highest court/judicial organ in the land(e.g. Supreme
court) .When it comes to rules of convention or treaty law a country must ratify a treaty
and secondly domesticate it. That is why Article 2(6) of the constitution is incomplete
unless you read it together with Ratification of Treaty & Convention Act 2012.Note
also that the I.C.J will only have jurisdiction in regards to a treaty if the parties to it by
consent agree that if such and a dispute arises we shall refer it to I.C.J. hence even when
parties to such a treaty are not members of the U.N or have not consented to compulsory
jurisdiction of the I.C.J they cannot say we are not bound by to I.C.J if such a dispute
emerges, because they will be told that they have so consented to ITS jurisdiction in regard to
such a dispute. Article 36(1) of statute of I.C.J affirms so by stating that: The
jurisdiction of the court comprises all cases which the parties refer to it and all matters
specifically provided for in the Charter of the U.N or in treaties and conventions. Don't
confuse DEFENCE PACT and TREATIES TO WAGE WAR. If you look at Article 51
of the U.N charter which is the only article which allows use of force in exercise of
Inherent right of self defense and can be exercised individually or collectively. If you look at
the treaty establishing NETO for example is a defense pact which brings together western
 European states, U.S & Canada .it is not an agreement set up to wage war against any other
state. Article 2(4) of the U.N Charter prohibits use of force in settling International
Disputes. Defense pact is for self defense by countries in exercise of Inherent right of self
defense collectively (Article 51) whereas treaties to wage war is an agreement to attack other
countries which is prohibited by Article 2(4) of the U.N Charter.
An example is a coalition force formed by U.S, German, British Egypt Troops which kicked
Sadam Hussein out of Kuwait in exercise of collective self defense. Even before you exercise
Article 51 there must have been a prior armed attack. Chapter 6,7 and 8 provides for powers
of security council. NETO invaded Libya under instruction by U.N Security council. I.L
and state practice allows Pre-emptive self defense is allowed e.g. U.S attacking Iran.
2) INTERNATIONAL CUSTOM
Is customs a source of international law?
Until recently the rules of general International Law were all customary rules. Although
most of these still exist they have been modified so as to be adapted to the changes in
International relations. The rules of customary International Law evolved after a long
historical process culminating their recognition by International community.
N/B; In order for a custom to give rise to a binding rule it must have been practiced
and accepted as obligatory by the international community.
State practice distinguishes between general and regional custom.
General customs are those customary rules that bind the International community as a
whole whereas local or regional customs are those applicable to a group of states or to a
sub-region interse.
{Lecturer's Explanation; Not every custom is a rule of Customary I.L .e.g. laying a carpet for a
visiting head of state. If for instance members of the state of the International community are
used to conducting their interstate affairs in a particular manner because they feel they are
bound to do so will then this will develop into a local or regional customary law and cannot
extend that practice to the international level or rest of Africa.}
Elements of customary law
What elements makes a custom obligatory?
i) Duration (for how long must the custom be practiced to give rise to binding rules)
 The jurisprudence of International tribunals including the ICJ indicates that no
particular duration is required for a particular practice to become law provided the
consistency and generality of the practice are proved. Conduct to be creative of a rule of
customary law must be regular and repeated.
In the North Sea Continental Shelf case (1969) I.C.J Rep.4, the ICJ says that there is no
precise length of time during which the practice must exist. Simply that it must be
followed long enough to show that the other requirements of a custom are satisfied.
The court stated, “ although the passage of a short period of time is not necessarily, or of itself,
a bar to the formation of a new rule of customary IL, on the basis of what was originally a purely
conventional rule, and indispensable requirement will be that within the period within question,
short though it might be, state practice, including that of states whose interest 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.” [What I.C.J is saying is that duration does not
matter what matters is consistency & the believe of the recognition of that particular
practice was obligatory]
ii) Uniformity and generality
Major inconsistencies in practice will prevent the creation of a rule of customary IL.
However, complete uniformity is not required and minor inconsistencies will not
prevent the creation of a customary rule provided that there is substantial uniformity.
In other words for state practice to give rise to a binding rule of customary IL, that
practice must be uniform, consistent and general and must be coupled with a belief
that the practice is obligatory rather than habitual.
This is illustrated by the Asylum case I.C.J Rep.266 which was between Colombia and
Peru. After an unsuccessful rebellion in Peru in 1948, a warrant was issued for the arrest
on a criminal charge arising out of the rebellion of one of its leaders Haya de la Torre a
Peruvian National. He was granted asylum by Colombia in its Peruvian embassy in
Lima(Capital city of Peru). Colombia sought but Peru refused a safe conduct to allow
Haya de la Torre out of the country. Colombia brought this case against Peru asking the
court to rule inter alia that Colombia as the state granting asylum was competent to
 qualify the offence for the purposes of the said asylum. Colombia argued for such a
ruling on the basis of both treaty provisions and “American International Law in
general.”
The court pronounced, “the party which relies on a custom of this kind must prove that this
custom is established in such manner that it has become binding on the other party. The
Colombian Government must prove that the rule invoked by it is in accordance with a constant
uniform usage practiced by the states in question, and that this usage is the expression of a right
appertaining to the state granting the asylum and a duty incumbent on the territorial state ---
The facts brought to the knowledge of the court disclosed so much uncertainty and contradiction,
so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official
views expressed on different occasions; there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some states and rejected by others, and the
practice has been so much influenced by considerations of political expediency in various cases,
that it is not possible to discern in all these any constant and uniform usage accepted as law.”
(Colombia proved that this is a duty)
 N/B -The generality of the practice is an aspect which complements consistency(must
be uniform consistent uniform &general). The practice need not be universal in that
what is important is that a substantial number of states must apply or practice the
custom.
END OF LESSON THREE.(This notes assist you but they are not a substitute to
attending class)