UNIVERSITY INSTITUTE OF

LEGAL STUDIES (UILS)

BBA LAW
Subject Name:PUBLIC INTERNATIONAL LAW
Subject Code: 21LCT-226
Dr. Namah (Assistant Prof.)

DISCOVER . LEARN .
EMPOWER
 INTRODUCTION
Five distinct sources of law can be identified
from Article 38 (1) of the Statute of the ICJ
which is generally taken to be the classic
statement of the sources of international law:
• Treaties • International custom • General
principles of international law • Judicial
decisions • The writing of the publicist
Equity a source additional also originates from Article 38.
• However, the above list drafted more than 90 years ago (Article 38
reproduces the same article of the Statute of the PCIJ does not take
account of the evolution of international law)
• Secondary legislation of the IGOs should be added to the above list.
• It is debatable whether declarations made by a state or group of states
which produce binding legal effects are to be regarded as a distinct source
of international law.
• Contemporary international law non-binding rules, the so called soft law,
which emanates from states and non-states actors, although not a source of
law, plays an increasingly important role in the international law making
process.
 TREATIES
• Treaty can be defined as an agreement (usually written)
between two or more states, governed by international
law and intended to create legal obligations. •
Distinction between law making treaties (normative
treaties) and treaty contracts. • Law making treaties lay
down rules of general or universal application and are
intended for future and continuing observance. • Treaty
contracts resemble contracts in that they are concluded
to perform contractual rather than normative functions
(e.g. building an aircraft).
• They are entered into between two or only a
few states and deal with particular matters
concerning those states exclusively.
• Such treaties like contract., expire when the
parties have performed their obligations (e.g.
build the aircraft).
 INTERNATIONAL CUSTOMS
• A customary rule requires the presence of two
elements: • An objective element consisting of
a relatively uniform and constant state
practice; • A psychological element consisting
of the subjective conviction of a state that it is
legally bound to behave in a particular way in
respect of a particular type of situation. This
element is usually referred to as the opinio
juris sive necessitatis.
 The objective element
• This is normally constituted by the repetition of certain
behavior on the part of a state for a certain length of time
which manifest a certain attitude, without ambiguity,
regarding a particular matter. • However, as no particular
duration is required for practice to become law, on some
occasion instant customs come into existence. • For that
reason, a few repetitions over a short period of time may
suffice or many over a long period of time or even no
repetition at all in so far as an instant custom is
concerned. • However, the shorter the time, the more
• A practice must be constant and uniform, in
particular with regard to the affected states, but
complete uniformity is not required. • It would
suffice that conduct is generally consistent with the
rule and that instances of practice inconsistent with
the rule are treated as breaches of that rule rather
than as recognition as a new rule. • So far as the
generality of the practice is concerned, this will
usually mean widespread but not necessary
universal adherence to the rule.
• Indeed, custom may be either general or
regional.
• General customs apply to the international
community as a whole.
• Local or regional customs apply to a group of
states or just two states in their relations inter
se.
 The subjective element-opinio juris sive
necessitatis
• To assume the status of customary
international law the rule in question must be
regarded by states as being binding in law, i.e.
that they are under a legal obligation to obey
it.
• This is a sort of tautological statement i.e.
state practice is not law unless state consider it
as law.
• Nevertheless, the main purpose of the opinio
juris sive necessitatis is to distinguish between
a customary rule and mere usage followed out
of courtesy or habit
 The persistent objector rule
• If during the formative stage of a rule of
customary international law a state
persistently object to that developing rule it
will not be bound by it.
• This rule is known as the persistent objector
rule.
• Once a customary rule has to come into
existence, it will apply to all states except any
persistent objectors.
• However, as objecting state, on order to rely on the
persistent objector rule, must:
• Raise its objection at the formative stage of the rule in
question;
• Be consistent in maintaining its objection;
• Inform other states of its objection. This is particularly
important with regard to a rule which has been almost
universally accepted.
• If a state remains silent, its silence will be interpreted as
acquiescence to the new rule.
• The burden of proof is on the objective state.
 The relationship between treaties and
international customs
• Relationship is complex.
• They co-exist, develop each other, and sometimes clash.
• If there is a clash between a customary rule and
provision of a treaty then, because they are of equal
authority (except when the customary rule involved is of a
jus cogens nature) whereupon being superior it will
prevail, the one that is identified as being the lex specialis
will prevail,
• The lex specialis will be determined contextually.
Special rules of customary international law
jus cogens and rules creating erga omnes
obligations
• Jus cogens rules represent the highest source in
the (informal) hierarchy of sources of international
law.
• The emphasis of jus cogens obligations is on their
recognition by the international community ‘as a
whole.’
The emphasis of erga omnes is on their nature. It mentioned embody moral values
which are of universal validity.

• They are binding because they express moral absolutes from which no state can
claim an exemption whatever its political, economic and social organizations.

The legal consequences of violating erga omnes obligations differ from those for
breach of the rules of jus cogens

• In addition to the consequences deriving from a breach of erga omnes obligations

further consequences, specified in Article 53 of the Vienna Convention on the Law
of Treaties, follow from violations of the rules of jus cogens.
General principles of international law
• If there is no treaty relevant to a dispute or
there is no rule of customary international law
that can be applied to it, the ICJ is directed
under Article 38 of the Statute, to apply
general principles of international law.
 Judicial decision
• As there is no binding authority of precedent in
international law, international court and tribunal cases
do not make law.
• Judicial decisions are, therefore, strictly speaking not a
formal source of law.
• However, they clarify the existing law on the topic and
may, in some circumstances, create a new principle in
international law.
• They can also be considered evidence of state practice
 The writing of publicists
• This source generally only constitutes
evidence of customary law.
• However, learned writings can also play a
subsidiary role in developing new rules of law.
 Equity
• This is a complex concept.
• Under Article 38(1) (c) of the ICJ Statute equity is
understood to be:
• A general principle of international law and thus may be
considered as a material source of law.
• A way of infusing elements of reasonableness and
‘individualized’ justice whenever law leaves a margin of
discretion to a court in deciding a case. This is equity which
operates within the boundaries of law (equity intra legem)
• Under Article 38 (2), equity means that a decision may be made ex aequo et bono,
i.e. the court should decide the case not on legal considerations but solely on what
is fair and reasonable in the circumstances of the case (equity contra legem).

• However, the parties must expressly authorize the court to decide a case ex aequo et
bono. So far, the ICJ has never delivered any judgment based on Article 38 (2).
 Secondary law of IGOs
• There is disagreement whether secondary acts adopted
by IGOs constitute a source of law or whether, being a
derivative source of law, they do not form part of general
international law.
• It is important to make a distinction between primary and
secondary law of IGOs.
• Primary laws refer to the founding treaties, i.e. treaty
establishing the relevant IGOs.
• Secondary law refer to acts adopted by IGOs on the basis
of primary law.
• Under traditional international law, secondary acts cannot be
qualified as a separate source of international law.
• They are neither binding, nor abstract, nor general rules but derive
from the founding treaties, concern a specific area of law and produce
legal effects only in respect of member states of the relevant IGOs.
• However the positivist approach has been challenged by the
establishment of IGOs having almost universal membership (e.g. UN)
and by globalization which entails not only the increasing
interdependence of states but also the need to find swift and
appropriate solutions to new problems facing the international
community.
• The better view, therefore, is that the secondary law of IGOs
constitutes an important source of international law.
 Declarations-an uncertain source?
• Whether a declaration by states is a source of
international law depends on the context in
which it has been made.
• It is debatable whether declarations which
produce legal effects are a source of
international law.
 SOFT LAWS
• Non-binding rules of international law are called ‘soft law’
whilst binding rules are considered as ‘hard law.’
• Soft law is of relevance and importance to the
development of international law because it:
1. Has the potential of law-making, i.e. it may be a starting
point for later ‘hardening’ of non-binding provisions (e.g.
UNGA resolution may be translated into binding treaties);
2. May provide evidence of an existing customary rule’
3. May be formative of the opinio juris or a state practice
that creates a new customary rule.
• 4. May be helpful as a means of a purposive interpretation of
international law;
• 5. May be incorporated within binding treaties but in provisions
which the parties do not intend to be binding;
• 6. May in other ways assist in the development and application of
general international law.
• 7. The importance of soft law is emphasized by the fact that not
only states but also non-state actors participate in the
international law making process through the creation of soft law.
• Nevertheless. Soft law is made up of rules lacking binding force,
and the general view is that it should not be considered as an
independent, formal source despite the fact that it may produce
significant legal effects.
 Codification of International Law: The
contribution of the ILC
• The ILC established by the GA of the UN in 1947 is made up of 34 legal experts
representing the world’s major legal system.
• The two main task of the ILC are:
1. The codification of international law, which is defined as the more precise
formulation and systematization of the existing customary rules of international
law.
2. The progressive development of international law, which involves the creation of
new rules of international law either but means of the regulation of a new topic or by
means of the revision of the existing rules.
• Since its inception the ILC has fulfilled its tasks with great professionalism and
dedication, producing numerous high quality international treaties, declarations
resolutions and model laws.
THANK YOU

For queries
Email: Namah.e10445@cumail.in