Sources of International Law

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Sources
Custom
Treaties
Decisions of judicial or arbitral tribunals
Juristic works
Decisions or determinations of the organ of
international institutions.

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A.38 of ICJ statute
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. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
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Material source
Evidence of existing rules, when proved, have the
status of generally binding rules of general application.
It is difficult to maintain the difference between
formal and material source in international law.
Evidences of existing consensus among states
Decisions of the International Court of Justice
Resolutions of General Assembly
Law making multilateral treaties

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Treaties
Binding force of treaties
Obligations arising from express agreement
Multilateral law making treaties to which a majority of
states are parties.

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International Custom
A.38 of ICJ statute defines: evidence of a general
practice accepted as law.
legal norms that have developed through the
customary exchanges between states over time.
General recognition among states of a certain practice
as obligatory.
Opinio juris
Usage: it is a general practice which does not reflect a
legal obligation.

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Custom
Customary international law is something done as a
general practice — not because it is expedient or
convenient, but because it is considered law, out of a
sense of legal requirement (opinio juris).
Element 1:  General practice.
Element 2:  States do it out of a sense of legal
obligation.
What constitutes state practice?
How much practice is required?
How much consistency is required?
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Requirements
 Duration
 Consistency
 Repetition
 Generality of a particular practice of states
 Time immemorial
 A peremptory norm (also called jus cogens, Latin for "compelling law")
is a fundamental principle of international law which is accepted by
the international community of states as a norm from which no
derogation is ever permitted.
 Examples include various international crimes; a state which carries
out or permits slavery, genocide, war of aggression, or
crimes against humanity is always violating customary international
law.
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Duration
Uniformity, consistency and generality of practice
Passage of time
Complete uniformity is not required, but substantial
uniformity is required.
Fisheries case, ICJ Reports 1951
ICJ refused to accept the 10 mile rule for bays.
Asylum case, ICJ Reports 1950 – the customary law
must be ‘in accordance with a constant and uniform
usage practiced by the states in question. – regional
custom.
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The Paquete Habana (1900)
The Paquete Habana case relied on edicts and
agreements as far back as 1403.
The Paquete Habana and the Lola were Cuban fishing
boats that were seized by the U.S. during the Spanish-
American war.
The U.S. District Court said that the Navy had acted
within its authority, under Federal statute.
Cubans argued violation of international law
This established rule of international law had existed
to protect peaceful fishermen from wartime seizures. 
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Asylum Case (1950)
Haya de la Torre, Peruvian national granted asylum in
Columbian embassy in Lima.
Political asylum
No match between domestic law and international
law
Variety of conflicting and contradictory evidence
shows it is not a custom.
Concurrence of the major powers of that field.

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Portugal v. India (1960)
Customary relations between nations becoming
binding.
Portugal had territory within India, and India
wouldn’t let the Portuguese move their military and
equipments back and forth to the enclaves. 
India asserted the rights that England had enjoyed,
and the right of passage only applied to civil activities.

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Generality of practice
Complements that of consistency.
Lotus case, absence of protest is not an evidence of
general acceptance.
Court not accepted the continuous conduct as prima
facie evidence of a legal duty and required a high
standard of proof.
Fisheries Jurisdiction case, United Kingdom v. Iceland:
extension of a fishery zone up to 12 mile (not 10) limit
is now accepted among states as a preferential rights
for coastal states.
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Evidence
Diplomatic correspondence
Policy statements
Press releases
Opinions of official legal advisors
Official manuals
Comments by governments on international relations
International and national judicial decisions
The wordings in treaties
The practice of international organisations.

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Uniformity
Some degree of uniformity amongst state practices
was essential before a custom could come into
existence.
Anglo Norwegian Fisheries Case – ICJ Reports 1951.
Measuring the breadth of the territorial sea using
straight line between projections.
Insufficient uniformity of behavior.

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Opinio juris sive necessitatis.
an opinion of law or necessity
A general practice accepted as law.
Practice consistent with international law
The burden of proof
The ICJ accepts existence of an opinio juris on the
bases of evidence of a general practice.
Positive evidence of recognition of the validity of the
rules in question in the practice of states.

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Lotus case
Lotus – French ship
Boz-Kourt – turkish ship
Essential ingradient of obligation was lacking and the
practice remained a practice, nothing more.

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The standard of proof
North Sea Continental shelf case and in Nicaragua v.
United States –
A new customary rule to be formed, not only must the
acts concerned ‘amount to a settled practice’ but they
must be accompanied by the opinio juris sive
necessitatis.
Right of passage over Indian territory, ICJ Reorts 1960
–a special right has to give affirmative proof of a sense
of obligation on the part of the territorial sovereign.

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North Sea Continental Shelf Cases (1969)
There are 3 ways the treaty could have become binding
customary international law:
The treaty re-stated a pre-existing custom.
The treaty’s rule crystallized customary law that had been
in the process of formation.
Both extensive and virtually uniform in the sense of the
provision.
Holland & Denmark argued that this treaty had generated
a new customary law, a new norm of international law
binding on everyone.
The ICJ therefore held that there was no customary
international law for the Dutch/Danish position.
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Nicaragua v. U.S. (1986).

Customary law may be a source of international law in

international disputes. 
It is separate from treaty law and convention law, as it must
be applied even if the countries are parties to a treaty.
The court held that it is no longer okay to settle disputes
with force, a customary norm.

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Custom
The evidence of objection must be clear and there is
probably a presumption of acceptance which is to be
rebutted.
Unequivocally manifested a refusal to accept the rules.
If a party pleas a regional custom as a practice, the
proponent must prove that it has become binding on
the other member.

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4. Treaties
Law making treaties
Conclusions of international conferences
Resolutions of the United National General Assembly
Drafts adopted by the International Law Commission
The Hague Convention of Paris 1856 and 1907 on Law
of war and neutrality.
Genocide Convention 1948

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Case laws
North Sea Continental Shelf Cases: To what extent
the German Federal Republic was bound by the
provisions of the Continental Shelf Conventions which
it had signed but not ratified.
11:6 – ICJ held that first 3 articles of the Convention
were emergent or pre-existing customary law.
Even if norms of treaty origin crystallize as new
principle or rules of customary law, the customary
norms retain a separate identity even if the two norms
appear identical in content.

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Bilateral treaties
Bilateral treaties may provide evidence of customary
rules.
Final Act of an intergovernmental conference adopted
an agreement unanimously – even though not
adopted-obvious importance.
E.g: the principles of international law recognised by
the Charter of the Nuremberg Tribunal and Judgment
of the Tribunal.

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General Principles of Law Recognised by Civilized Nations
A.38(1)(c) of the statute of the ICJ.
Rules and principles recognised in the domestic laws
of all recognised nations.

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RGSOIPL, IIT Kharagpur

Thank you

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