 Subject: International Law

 Teacher: Agha Shahriyar Khan (CSS 2019 Qualifier)

 Contact number: 03432374304 (If you have any further questions, kindly WhatsApp your
queries and wait. I’ll definitely reply)
 Website: https://aghashahriyar.wordpress.com/ (Visit for Essay outlines and introductions ,
Articles on Current affairs and International Relations and Book Reviews)
 Lecture number: 3
 Time Limit: 90min

Topics for Today’s Class

 Sources of International Law
 Vienna Convention on the Law of Treaties, 1969

Sources of Int. Law

Although there is no international legislature and court to which international community must compulsorily
submit still under article 38(1) of statue of international court of justice, rules of international law can be
pragmatically found in international conventions, international customs, etc.
4. Meaning of sources:
Starke:
"By sources of international law we mean the actual materials from which an international lawyer ascertains the
rule applicable to a given situation."

The term “sources of Public International Law” is used to mean two things: first, the actual materials determining
the rules applicable to a given international situation (the material sources), and second, the legal methods
creating rules of general application (the formal sources).[1] However, because it is difficult to maintain this
distinction, the two meanings are used interchangeably
5. Classification of sources:
Sources of international law may be classified into two categories.

1. Formal
2. Material
3. Primary
4. Subsidiary

I. Formal sources of international law:

A formal source is that source which a rule of law derives its force and validity. there are no formal sources
of international law and one of the main criticism on international law is that it does not have an legislature of its
own, thus its laws cannot have any sanction.
II. Material sources of international law:
Material sources of international law are those actual materials form which an international lawyer determines the
rule applicable to a given situation article 38(1) of the statute of international court of justice enlists such material
sources of international law. there are all kinds of sources in this statute including primary and
secondary. pare second of article 38 of the statute enlists secondary sources ofinternational law.

Primary vs Subsidiary Sources of Int. law

Some writers have sought to categorize the distinctions in this provision, so that international
conventions, custom and the general principles of law are described as the three exclusive law-creating
processes while judicial decisions and academic writings are regarded as law-determining agencies,
dealing with the verification of alleged rules.4 But in reality it is not always possible to make hard and
fast divisions. The different functions overlap to a great extent so that in many cases treaties (or
conventions) merely reiterate accepted rules of customary law, and judgments of the International
Court of Justice may actually create law in the same way that municipal judges formulate new law in the
process of interpreting existing law

6. Article 38(1) of statute of international court of justice:

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) Judicial decisions and teaching of the most highly qualified publicists of the various nation as subsidiary means
for the determination of rules of law.
Main sources of international law:
I. Primary sources:
(a) International Conventions/Treaties:
Treaties are most important source of theinternational law.
(i) Definition of treaty:
Article 2 of the vienna convention on the law of treaties 1960 defines treaty:
"An agreement whereby two or more states establish or seek to establish a relationship between them governed
by international law."
(ii) Kinds of treaties:
(a) Law making treaties
Law provisions of law making treaties are directly a source of international law. law making treaties perform the
same functions in the international field as legislation dose in the state field. there are the means through
whichinternational law can be adapted to in accordance with the changing time and circumstance and the rule of
law among the states can be strengthened.
(b) Treaty contracts:
Treaty contracts are entered into by two or more states. the provisions of such treaties are binding on the parties
to the treaty. the treaty contracts are indirect source of the international law.

Examples

 IWT 1960
 JCPOA 2015
 NPT 1968

(b) International customs:

International customs are one of the most important sources of international law. article 38 of the statute of
international court of justice recognizes international customs as a source of international law.
The essentials of valid international custom are as under:
(ii) Uniformity and consistency:
Case law.
Asylum case (1950)
"The rule invoked should be in accordance with a constant and uniform usage practiced by the states in question."
(iii) Generality practice or observed.
(iv) Opinio juris et necessitates. Case Reference: North Sea Continental Shelf Case

(c) General principles of law recognized by civilized states:

General principles of law recognized by the civilized states is also an important source of the international law.
general principles of law are those rules which have been recognized by almost all the states.

Examples of General Principles:

Chorzdw Factory case: it is a general conception of law that every violation of an engagement involves
an obligation to make reparation'.

Corfu Channel case: when referring to circumstantial evidence, pointed out that 'this indirect evidence
is admitted in all systems of law and its use is recognised by international decisions

Administrative Tribunal case: a judgment rendered by such a judicial body is res judicata (a matter that
has been adjudicated by a competent court and therefore may not be pursued further by the same parties.) and
has binding force between the parties to the dispute.

Temple case: he International Court of Justice applied the doctrine of estoppel (the principle which
precludes a person from asserting something contrary to what is implied by a previous action or statement of that
person or by a previous pertinent judicial determination.)

Nuclear Tests case: One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith
(i) Good faith.
(ii) In the absence of any provision to the contrary every court has right to determine of it own jurisdiction.
(iii) A party to a suit cannot himself be an arbitrator or a judge in his own case.
(iv) Audi alterm paterm (let the other side be heard as well". )

(d) Judicial decisions:

Juristic works forms the evidence of international law, yet it assumes importance when there are no established
customs or treaties.
Lawrence' s views:
"A writer an international law in a sense himself legislates for he creates the opinion that is really supreme."

Example

examples include the Reparations case, which recognised the legal personality of international
institutions in certain cases, the Genocide case, which dealt with reservations to treaties, and the
Nottebohm case, which considered the role and characteristics of nationality.

Of course, it does not follow that a decision of the Court will be invariably accepted in later discussions
and formulations of the law. One example of this is part of the decision in the Lotus case, " which was
criticized and later abandoned in the Geneva Conventions on the Law of the Sea. But this is
comparatively rare and the degree of respect accorded to the Court and its decisions renders its
opinions vital to the growth and exposition of international law
(v) Decisions of determinations of the organs of international institutions:
Decisions on questions of jurisdiction of an organ of international institution may have a law making effect.
sometimes organs of the international institutions are authorized to give binding determinations concerning the
interpretation of their constituent instruments.
(vi) State papers:
State papers other than treaties are also source of international law. the archives of the foreign affairs department
of every country contain a mass of valuable experts opinion which are useful for international law.
II. Secondary sources: Following are the secondary sources of theinternational law.
(a) State judicial decisions.
(b) International community.
(c) Equity and natural justice.
(d) Jus congens.
(f) State practices.
(g) Private contracts.
(h) Roman law.
(i) Principles of Islamic law.

Hierarchy of sources

Judicial decisions and writings clearly have a subordinate function within the hierarchy in view of article
38(1), while the role of general principles of law as a way of complementing custom and treaty law
places that category fairly firmly in third place. The question of priority as between custom and treaty
law is more complex. As a general rule, the later in time will have priority. Treaties are usually
formulated to replace or codify existing custom,201 while treaties in turn may themselves fall out of use
and be replaced by new customary rules..

9. Conclusion:
To conclude it can be said that the sources are the name of historic fall put of which rules of conduct comes into
existence. although there is no international legislature and court to which international community must
compulsorily submit, still under article 38 of the statue of international court of justice provide sources for
international law.

Vienna Convention on the Law of Treaties, 1969

Treaties/Conventions (All articles mentioned below belong to Vienna Convention 1969)
1969 Vienna Convention on the Law of Treaties: Treaty is an international agreement concluded
between States in written form and governed by international law. (Art 2)
Consent to be bound by a treaty:
Article 11: consent to be bound by a treaty may be expressed by signature, exchange of instruments,
ratification, acceptance, approval, accession or any other method agreed.
Pacta Sunt Servanda
“Binding force of Int. treaty is on the fundamental principle known as Pacta sunt servanda” – Anzilotti
Article 26 – “every treaty in force is binding upon the parties to it and must be performed by them in
good faith” – (PSS)
Treaties are long lasting and binding because it’s a customary rule.
Classification of treaties – Oppenheim
1. Law-making treaties
2. Treaties for other purposes
* Only recognized States and organizations can make treaties.
Entry into Force:
 As soon as all negotiating States have expressed their consent to be bound by it.
 When many States participate in drafting a treaty, it is unlikely that all States will ratify it; in that
case, treaties provide that they would enter into force when ratified by a particular number of
States.
Registration:
 Every treaty has to be registered with the Secretariat and published by it.

Reservations:
 Unilateral statements made by a State, when accepting a treaty, whereby it purports to exclude or
modify legal effect of certain provisions of the treaty e.g. US reservation concerning death
penalty when it signed International Covenant on Civil and Political Rights (ICCPR).
 “A State making reservation that is objected by some of the parties to the convention can be
regarded as a party to the convention, if the reservation is compatible with the object and purpose
of the Convention”. Advisory Opinion of ICJ in Genocide Case

Application of the Treaties:

Territorial scope of the treaties: treaty is binding upon a State in respect of its entire territory.
Treaties and third States: neither rights nor obligations for the third States
However, obligation under the UN charter i.e. obeying the treaty as part of customary international law or
as Jus Cogens
Invalid Treaties:
 Treaties entered into by unauthorized persons

Article 7: A person is considered as representing a State:

(a) He produces full powers
(b) It appears from the State practice that their intention was to consider that person as representing
the State
E.g. Head of the State, Head of the government, Foreign Ministers

Coercion of a Representative of a State:

Article 51: coercion of a representative by acts or threats makes the treaty concluded by him void of any
legal effect.

Coercion of a State by the threat or use of Force:

Article 52: coercion makes a treaty invalid - violation of principles embodied in the UN charter

Other Causes of invalidity:

 Fraud by other negotiating State (Art 49)
 Corruption by negotiating State’s representative (Art 50)
 If treaty is in conflict with jus cogens ( Art 53)

Formation of Treaty:
1. Accrediting (recognizing) of persons on behalf of contracting parties Article 9
2. Negotiation
3. Signatures and adoption article 12(b)
4. Ratification Article 14
5. Accession 6 and Adhesion Article 15 and 16
6. Entry into force Articl 24
7. Registration and publication Article 102 of UN charter
8. Application and enforcement

Termination of a Treaty:
Termination in accordance with law (ART 54)
Termination by the consent of the parties (ART 55)
Implied right of denunciation or withdrawal (ART 56): It is essential to give twelve months prior notice
showing intention to denounce or withdrawal. This right can never be implied if the treaty contains
express provision concerning withdrawal or denunciation from a treaty.
Discharge through Breach: (Art 60): material breach by a State gives the other State right to terminate a
treaty or suspend it. Injured States can also claim compensation.
Impossibility of performance (Art 61)
(Art 62) Fundamental change of Circumstances gives the right for termination of a treaty. Rebus sic
stantibus
Emergence of new pre-emptory norm: (Art 64): emergence of a new pre-emptory norm makes an existing
treaty void if it is in conflict with the norm.
Important Maxims
1. Pacta terties nec nocent nec prosunt
“Only parties to contract are bound to contract”
Exceptions: Art 34 to 38
i. Treaties which concern the right of the third party. - Even third party can be conferred some
rights under the treaty. Art 36
ii. Multilateral treaties – which declare the established customary I.L may bind even non-parties.
iii. Multilateral treaties - which create new rules of I.L may also bind non-parties. Example: Art
2(6) of UNCh provides that non-member shall act in accordance with the purposes of the UNCh.
2. Rebus sic stantibus
“There is an ‘implied clause’ in every treaty that provides that the agreement is binding only so long as
the material circumstances on which it rests remain unchanged”.
Criticism
“Rebus sic stantibus is one of the enigmas of I.L” ~ Starke
However, Art 62 provides for fundamental change of circumstances as one of the grounds for termination
of treaties and determines the scope and limit of the application of this ground. Hence rebus sic stantibus
is no more an enigma of I.L
“The doctrine rebus sic statntibus is clearly a reasonable doctrine which it is right that I.L should
recognize”. ~ Brierley
3. Pacta sunt servanda (discussed earlier)
“Treaties must be followed”.
Unequal Treaties – (Particularly view of communist States i.e USSR and China)
A treaty which provides that one State has the right to exercise power on the territory of the other,
such as, agreements permitting establishment of foreign military basis, collective security agreements
between the capitalist states, and economic assistance agreements will be unequal.
Jus Cogens (Pre-emptory norms from which no derogation is permitted and which could be modified
only by a subsequent norm of general I.L having the same character)

jus cogens is a peremptory norm is defined by the Convention as one 'accepted and recognised 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 Various examples ofthe content of jus cogens have been provided, particularly during the
discussions on the topic in the International Law Commission, such as an unlawful use of force,
genocide, slave trading and piracy

It is also clear that only rules based on custom or treaties may form the foundation of jus cogens norms.

Article 53: “A treaty is void if, at the time of its conclusion, it conflicts with a pre-emptory norm of
general I.L”.
Article 64: “If a new pre-emptory norm of general I.L emerges, any existing treaty which is in conflict
with that norm becomes void and terminates”.