IURI 323 2023 Study section 1.2

IURI 323
International Law
Prof. Hein Lubbe
Study section 1.2
Sources of international law
Disclaimer
▪ The slides are NOT a complete summary of the work, it merely
serves as a FRAMEWORK to provide structure to contact sessions.
▪ Itremains YOUR RESPONSIBILITY to SUPPLEMENT the slides with

the textbook and authority.
Prescribed study material

Study guide 4-5
Textbook: 608-631 (Treaties) & 28-56 (Sources in general)
IURI 323 2023 Study section 1.2 – 2/48

Learning outcomes
At the end of this study section, you should be able to:
▪ identify and describe the sources of international law;
▪ critically
analyse the most important rules concerning the origin
and use of these sources; and
▪ apply your knowledge and insight to relevant factual situations.

Sources of international law
Statute of the International Court of Justice (ICJ)

INTERNATIONAL TREATIES
Textbook 608-631 (Treaties)

International treaties
▪ The rules governing the making, observance, interpretation,
validity, and the termination of treaties are found in customary
international law (codified in convention).
▪ Treaties
between states are regulated by the Vienna Convention on
the Law of Treaties (Vienna Convention).
▪ Other parties like international organisations can also conclude

treaties between themselves or with states.
▪ Regulated by the Vienna Convention on the Law of Treaties between States
and International Organizations and between International Organizations

Definition - Article 2(1)(a) Vienna Convention
▪ Who can be party to a treaty in terms of this article?

▪ States
▪ Can a treaty be concluded orally?

▪ No, it must be written.
▪ What terminology is also used to refer to a “treaty”?

▪ Convention, Agreement, Covenant, Declaration, Charter…
▪ There are TWO ways in which parties can conclude treaties:
1) Bilateral (two parties)
2) Multilateral (more than two parties)
▪ There are THREE categories of treaties:
1) Contractual
▪ Two or more states can create a certain legal relationship in matters like
trade, extradition, air and landing rights etc.
▪ What does pacta sunt servana mean?
▪ Obligations created in terms of an agreement must be honoured.

2) “Legislative”
▪ States can codify existing customary international law rules, or create new
rules of law binding on signatories.
▪ A codified rule may afford evidence of a widespread customary rule, in

which case it will provide the basis for a legal obligation under custom
binding upon non-signatories.

Article 2(6) UN Charter
▪ Explain the pacta tertiis principle - see Dugard 609 (last paragraph).
▪ A treaty only binds the parties to the treaty; it does not create
obligations for third parties.
▪ Can article 2(6) above be regarded as an exception to the pacta tertiis

principle? Motivate.

3) Constitutional
▪ Intergovernmental organisations like the UN are created by multilateral

treaties:
▪ The UN Charter serves as the constitution of the UN.
▪ The International Criminal Court was also created by a multilateral treaty:

▪ The Rome Statute serves as constitution of the court.

▪ International law does not prescribe how a state is to exercise its treaty-
making power. It is regulated by municipal law (section 231 of the South
African Constitution).
▪ The South African Constitution is premised on the Vienna Convention

which allows final consent to be bound by a treaty to be given by
signature, ratification or accession (see the next slide for an explanation
of these terms).
Section 231(2) SA Constitution


Reservation – Article 2(1)(d) Vienna Convention
▪ It often happens that a state is not satisfied with the treaty in its entirety,
and wishes to negotiate on some of the terms.
Bilateral treaties
▪ States re-negotiate, and the reservation is seen as a counter-offer.

Multilateral treaties
▪ States may become a party to the treaty while maintaining a reservation

(depending on what the treaty itself allows).
▪ A reservation modifies or excludes the legal effect of certain provisions.
▪ Provided that the reservation is compatible with the object and purpose
of the treaty – article 19 of the Vienna Convention.

Conditional – Article 19 Vienna Convention
▪ Article 20(2): Reservation requires acceptance by ALL THE PARTIES when the
application of the treaty in its entirety between all parties is an essential condition.
▪ NOTE: A reservation does not modify the provisions of the treaty for other parties,
but only for the reserving state.
▪ A state that objects to the reservation can, however, exclude the entire operation of
the treaty between itself and the reserving state.
▪ The benefit of reservations is that the flexibility it offers promotes wide
acceptance.
▪ Reservations can, however, create uncertainty and confusion as to the

extent of the reserving state’s obligations, and some multilateral treaties
such as the Rome Statute prohibits reservations.
▪ Examples of reservations, some of which are difficult to reconcile with the

object and purpose of the treaty, and at the expense of the integrity of
the treaty: See Dugard 615 and the European Court of Human Rights’
response in General Comment 24 (1994) rejecting such reservations

INVALIDITY OF TREATIES
▪ In cases where consent is secured by means of threats.
▪ Where treaties conflict with peremptory norms (jus cogens).
▪ A state may not invoke the fact that it entered into a treaty in violation of its
internal laws as a ground for invalidating its consent unless the rule of its internal
laws is of fundamental importance.
▪ A state may also not invoke an error in a treaty as a ground for invalidity unless
the error relates to a fact which was assumed and formed an essential basis of its
consent and if it did not contribute to the error by its own conduct.

TERMINATION OF TREATIES
▪ When the treaty itself contemplates termination.
▪ When the parties to the treaty agree thereto.
▪ Where there is a fundamental change in circumstances, which initially

determined the parties to accept the treaty – article 62 of the Vienna
Convention.
▪ A material breach of a treaty entitles the other party to invoke the breach
as a ground for terminating the treaty.

INTERPRETATION OF TREATIES
▪ Textual – Article 31
▪ Literal or grammatical meaning of words.
▪ Teleological – Article 31
▪ Emphasises on object and purpose of a treaty (preamble).
▪ Intention of parties – Article 32

▪ Seeks to give effect to the intention of the parties, which the judge
invokes from the text, preparatory work (travaux préparatoires) or
historical record of the treaty.

SUCCESSION TO TREATIES
▪ A change in government does not affect the validity of treaties, the new
government is bound by the treaties of its predecessor until it decides to
withdraw and follows prescribed process – a 54 Vienna Convention.
Section 231(5) SA Constitution
▪ The position is different when the state itself undergoes a change in legal
personality.
▪ Example: Decolonisation

INTERNATIONAL CUSTOM
Textbook 28-56 (Sources in general)

International custom
What is custom/customary rule?
▪ Settled state practice (usus) coupled with the acceptance of an obligation
to be bound by the practice (opinio juris) – BOTH requirements must be
met before a rule/principle becomes custom.
Why is custom important?

▪ International law has no central legislature.
▪ Underdeveloped jurisdictions…
Consent of states to a customary rule is inferred from the conduct of

states, and is difficult to prove and leads to disputes.
IURI 323 2023 Study section 1.2 - 23/48

USUS
▪ Evidence to be found in:

▪ Legislation / Treaties
▪ Court decisions
▪ Diplomatic correspondence / policy statements by government official
▪ Comments by states on the reports of the International Law
Commission
▪ South African Yearbook of International Law
▪ If not clear:
▪ Derive from conduct / failure to protest against relevant rule…

Usus on its own has TWO requirements:
(1) According to the ICJ the practice must be "constant and uniform".
(2) It must also enjoy "general" or "widespread" acceptance.
(1) CONSTANT AND UNIFORM
▪ Asylum-case
▪ Is the granting of asylum to political refugees in Latin-American
countries a customary rule?
▪ The court found that there were too much uncertainty, contradiction
and discrepancy in the granting of asylum by these countries that it
cannot be described as "constant and uniform" and therefore it
cannot qualify as a customary rule.
▪ A similar approach was followed in 1988 in S v Petane":
▪ The court had to decide whether or not a member of the military wing
of the ANC was entitled to prisoner-of-war status on the ground that
Additional Protocol I of 1977 to the Geneva Conventions of 1949, which
grants such status to members of national liberation movements, had
become part of customary international law and was thus binding upon
SA (which up to then had treated such persons as common criminals
and only became a party to the Protocol in 1995).

▪ The court found that (at the time) the mere fact that some 60 states had
signed the Protocol could not be seen as evidence of usus and that a
customary law rule had therefore not been formed…
▪ Signing vs. endorsing/implementing in their practice.
▪ See Dugard 32 for a quote by Conradie J that comes down to:

▪ "Custom is founded on practice and not on preaching."
▪ In most cases, the passage of time is required for a practice to crystallise

into a customary rule.
▪ Can you name an exception? See Dugard 34

▪ The formation of a customary rule in SA and Lesotho was considered in
1980 in Nkondo v Minister of Police:
▪ The court had to decide whether or not it had jurisdiction to try a

member of the ANC military wing whose flight from Mozambique to
Lesotho had been forced by adverse weather conditions to make an
emergency landing in SA.
▪ The security forces boarded the aircraft and arrested the particular
person.

▪ The court upheld the applicability of the maritime distress-rule (in terms
of which a ship may enter the internal waters of a foreign state when in
distress), BUT nevertheless refused to apply this general principle to a
person suspected of crimes against the security of the state in which the
aircraft was forced to land.
"The fact that on only four occasions passengers were

allowed passage across South African territory without
having to comply with immigration formalities’ could not
serve as evidence of a customary rule."

▪ The court found that customary international law did not permit a person
on board such an aircraft free transit across SA territory with full
immunity from arrest for crimes against the safety of the state.
▪ The court therefore decided that Nkondo could be tried under SA’s
security laws, BUT the executive ordered his release and return to
Lesotho, probably fearing international repercussions should he have
been tried and sentenced under the particular circumstances of the case.

(2) GENERAL OR WIDESPREAD ACCEPTANCE
▪ Confirmed in the Fisheries Jurisdiction case 1974 ICJ
▪ NOTE: Universal acceptance IS NOT NECESSARY.

▪ See: North Sea Continental Shelf cases 1969 ICJ

▪ In 1978, in Nduli v Minister of Justice it was, however, incorrectly suggested that
"universal acceptance" was necessary:
▪ The court found that SA could not be held responsible for the arrest of an ANC
operative carried out by SAP in Swaziland (in violation of Swaziland’s
territorial integrity) where the arrest had been carried out contrary to the
instructions of their superior officer.
▪ Subsequent decisions questioned the correctness of Nduli and indicated that

"general acceptance" is sufficient.
▪ In 1980, in Inter-Science Research and Development Services (Pty) Ltd v
Republica Popular de Mozambique and in Kaffraria Property Co (Pty) Ltd v
Government of the Republic of Zambia the court accepted that the restrictive
approach to sovereign immunity in commercial matters accurately reflected
the current position in international law and refused to apply the outdated
absolute approach. IURI 323 2023 Study section 1.2 – 32/48
▪ Will a dissenting state be bound by the general acceptance of a rule by other
states?
▪ In S v Petane the court was of the opinion that if a state persistently objects to a
particular practice, while the law is still in the process of development, it cannot
be bound by a customary rule that may emerge from such a practice.
▪ Support for this view: See fn 41 & 42 in Dugard 35.
▪ States refused to accept SA’s persistent objection to accepting apartheid as a

violation of customary international law.
▪ The prohibition on apartheid is a peremptory norm of jus cogens, to which

normal rules relating to persistent objection ARE INAPPLICABLE.

OPINIO JURIS
▪ Usus (settled practice) alone is insufficient to create a customary rule.
▪ There must further be a sense of obligation on the part of the state that
they are bound – article 38(1)(b) "accepted as law".
▪ It is difficult to prove, and it has been suggested that it could be presumed

if there is evidence of usus.
▪ Not endorsed by North Sea Continental Shelf & Nicaragua cases.

▪ In the North Sea Continental Shelf cases between West Germany and
Netherlands & Denmark on dividing the Continental Shelf according to the
principle of equidistance the court did not find evidence of a subjective
element.
▪ The court therefore found that the said principle had NOT become a
rule of customary international law.
▪ See the map on the next slide for interest's sake.


RESOLUTIONS OF THE UN
▪ Resolutions of the General Assembly are advisory of nature and those of

the Security Council (Chapter VII) with regard to peace and security are
binding.
▪ The question is whether or not these resolutions play a part in the

formation of international custom.
▪ Answer: The accumulation and repetition of these resolutions, extent of

support etc. can play a role.

▪ In the SWA cases, the South African judge rejected the argument that a
customary rule of non-discrimination had been created by repeated resolutions
condemning apartheid.
▪ According to Van Wyk J, such a view involved the proposition that the organs of
the UN possessed legislative competence whereby they could bind dissenting
minorities.
▪ In S v Petane, Conradie J stated that it is doubtful whether resolutions passed by

the General Assembly qualify as state practice…there has to be usus AND opinio
juris.
▪ Conradie J warned that resolutions cannot be said to be evidence of usus:

▪ "…if they relate, not to what the resolving states take upon themselves to do,
but to what they prescribe for others."
▪ This approach casted doubt on the validity of the view that certain provisions in
the Universal Declaration of Human Rights, adopted by the General Assembly in
1948, had become customary rules.
▪ A different approach was followed in Filartiga by the US on the prohibition of

torture.
▪ See Dugard 39: The court relied heavily on the Universal Declaration of Human Rights,
which condemns the use of torture and made no rigorous enquiry into usus.
▪ A similar approach was followed in the Nicaragua case on the prohibition of the
use of force in article 2(4) of the UN Charter.
▪ Without any consideration of usus the court held that a customary rule may be
established where the opinio juris on the part of the state is clear from their support
for resolutions of the General Assembly.

▪ In an advisory opinion by the ICJ in 1996 on the Legality of the Threat or
Use of Nuclear Weapons, the court gave a cautionary admonition:
▪ The court noted that resolutions may sometimes have normative value,
but said that it is necessary to look at the contents and conditions of its
adoption.
▪ Resolutions should be examined in their TOTALITY and even if it aims

to serve a deep concern it may still fall short of establishing the
existence of an opinio juris.

SOFT LAW
▪ Imprecise standards generated from resolutions of international
organisations etc. intended to serve as guideline, but which lack the status
of "law".
▪ Helsinki Final Act
▪ Effort to reduce tension between the Soviet and Western blocs by securing their
common acceptance of the post-World War II status quo in Europe.
▪ Rio Declaration
▪ Set of principles to guide the future development. These principles define the
right of people to development, and their responsibilities to safeguard the
common environment.
▪ Useful guide for state conduct.

General principles
▪ The ICJ comprises of judges from different national backgrounds who are well
qualified to draw on general principles of law from their own jurisdictions.
▪ Only if there are no rules of treaty or customary law applicable, courts turn to
general principles of law found in municipal systems (where applicable) to fill
gaps in international law.
▪ In the International Status of SWA case, the court considered the nature of SA’s
mandate over SWA:
▪ The court relied on trust law and found that the rights of a trustee (SA) are limited and
under the particular circumstances the trustee was not permitted to absorb the trust
property into his own estate – SA was therefore unable to alter the status of SWA by
absorbing it into the territory of SA.

Judicial Precedent
▪ Article 38(1)(d) of the ICJ statute:
▪ Judicial decisions are subsidiary means for the determination of the rules of
law.
▪ Subject to article 59 which states that judicial decisions has “…no binding force
except between parties in respect of that particular case”
▪ No stare decisis doctrine as in civil law traditions, but in practice courts

tend to follow their own previous decisions.

Other sources
▪ Text writings
▪ Jurists / Academic scholars
▪ Unilateral acts of states

▪ Statements by government officials (Dugard 46-47):
▪ Denmark v Norway
▪ Australia v France
▪ Codification
▪ Article 13(1) UN Charter
▪ International Law Commission
▪ Dugard 47-49

Jus Cogens & Erga Omnes
▪ International law is seen as a body of rules based on consent and
characterised by neutrality.
▪ A necessary consequence is that all legal norms are equal is status.
▪ Two concepts challenge this approach:

▪ Jus Cogens: Peremptory norms from which no derogation is permitted.
▪ Erga Omnes: Obligations which a state owes to the international
community as a whole and in the enforcement of which all states have
an interest.

Examples of jus cogens:
▪ Aggression
▪ Slavery
▪ Genocide
▪ Racial discrimination
▪ Torture
▪ Self-determination…

Examples of Erga Omnes:
▪ The formulation of the concept was a response to the SWA cases where
the International Court of Justice denied legal standing to Ethiopia and
Liberia to enforce an obligation owed to the international community:
▪ Obligation on SA to promote material and moral wellbeing and social

progress of the people of SWA.
▪ Bercelona Traction case where the court found that a litigant state will no
longer have to prove a national interest in the subject matter of its claim
where an obligation of concern to all states (erga omnes) was involved.

▪ The International Law Commission has given recognition to the concepts
of jus cogens and erga omnes in its 2001 Draft Articles on the
Responsibility of States for Internationally Wrongful Acts.
▪ The commission mentioned "higher norms" and attaches serious

consequences to breach of a peremptory norm, and recognises the right
of non-injured states to institute proceedings and take measures on
behalf of the international community as a whole.

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IURI 323

▪ Itremains YOUR RESPONSIBILITY to SUPPLEMENT the slides with

Prescribed study material

IURI 323 2023 Study section 1.2 – 2/48

▪ identify and describe the sources of international law;

▪ apply your knowledge and insight to relevant factual situations.

IURI 323 2023 Study section 1.2 – 3/48

IURI 323 2023 Study section 1.2 – 4/48

IURI 323 2023 Study section 1.2 – 5/48

▪ Other parties like international organisations can also conclude

IURI 323 2023 Study section 1.2 – 6/48

▪ Who can be party to a treaty in terms of this article?

▪ Can a treaty be concluded orally?

▪ What terminology is also used to refer to a “treaty”?

▪ There are THREE categories of treaties:

IURI 323 2023 Study section 1.2 – 8/48

▪ A codified rule may afford evidence of a widespread customary rule, in

IURI 323 2023 Study section 1.2 – 9/48

▪ Can article 2(6) above be regarded as an exception to the pacta tertiis

IURI 323 2023 Study section 1.2 – 10/48

▪ Intergovernmental organisations like the UN are created by multilateral

▪ The International Criminal Court was also created by a multilateral treaty:

IURI 323 2023 Study section 1.2 – 11/48

▪ The South African Constitution is premised on the Vienna Convention

IURI 323 2023 Study section 1.2 – 12/48

IURI 323 2023 Study section 1.2 – 13/48

IURI 323 2023 Study section 1.2 – 14/48

▪ States may become a party to the treaty while maintaining a reservation

▪ A reservation modifies or excludes the legal effect of certain provisions.

IURI 323 2023 Study section 1.2 – 15/48

▪ Reservations can, however, create uncertainty and confusion as to the

▪ Examples of reservations, some of which are difficult to reconcile with the

IURI 323 2023 Study section 1.2 – 17/48

▪ In cases where consent is secured by means of threats.

▪ Where treaties conflict with peremptory norms (jus cogens).

IURI 323 2023 Study section 1.2 – 18/48

▪ When the treaty itself contemplates termination.

▪ When the parties to the treaty agree thereto.

▪ Where there is a fundamental change in circumstances, which initially

IURI 323 2023 Study section 1.2 – 19/48

▪ Intention of parties – Article 32

IURI 323 2023 Study section 1.2 – 20/48

IURI 323 2023 Study section 1.2 – 21/48

IURI 323 2023 Study section 1.2 – 22/48

Why is custom important?

Consent of states to a customary rule is inferred from the conduct of

IURI 323 2023 Study section 1.2 - 23/48

▪ Evidence to be found in:

IURI 323 2023 Study section 1.2 – 24/48

(1) CONSTANT AND UNIFORM

IURI 323 2023 Study section 1.2 – 26/48

▪ See Dugard 32 for a quote by Conradie J that comes down to:

▪ In most cases, the passage of time is required for a practice to crystallise

IURI 323 2023 Study section 1.2 – 27/48

▪ The court had to decide whether or not it had jurisdiction to try a

IURI 323 2023 Study section 1.2 – 28/48

"The fact that on only four occasions passengers were

IURI 323 2023 Study section 1.2 – 29/48

IURI 323 2023 Study section 1.2 – 30/48

▪ Confirmed in the Fisheries Jurisdiction case 1974 ICJ

▪ NOTE: Universal acceptance IS NOT NECESSARY.

IURI 323 2023 Study section 1.2 – 31/48

▪ Subsequent decisions questioned the correctness of Nduli and indicated that

▪ States refused to accept SA’s persistent objection to accepting apartheid as a