Sources of International Law

Dr. Shashi Bhushan Ojha and Prof

(Dr.) C. J. Rawandale
 Sources of International Law
• Subjects of International Law are bound to
observe the rules of International law
• Meaning of Source of Law
• Formal Sources and Material Sources
• Sources in International Law
• Difference with respect to Municipal Law as to
find the source of law (decentralised system)
 Sources of International Law
• The most authoritative conventional provision
on the sources of International law in general is
still Article 38(1) of the Statute of the
International Court of Justice after more than
90 years.
• It includes (i) Treaties (ii) Customs (iii) General
Principles of Int. Law (iv) Judicial Decisions (v)
Writings of the Publicists
• Ex acqueo et bono (Non-liquet)
 Sources of International Law
Customs as a source of Int. Law
• International custom, as evidence of a general
practice accepted as law
• Customs, Treaties and General Principles are considered
to be of law creating nature while rest is considered to
be law interpreting/determining nature.
• Custom is a standard of behaviour which has attained
historical legitimacy.
• Custom vs usage
 Sources of International Law
• Relevance of custom in modern society
• Eherlich concept of Living Law
• Historical School regards customs as original
source of law
• May be int. law is still in primitive stage; is
dynamic, therefore customs have great
importance in int. law
• When is custom born? Difference with courtesy?
 Sources of International Law
• Even though scholars believe that customs is
vague, clumsy, slow, conflicting but is important
in cases of non-liquet when states are not ready
to sign treaties.
• Rise in treaty making habit is diminishing the
importance of customs.
• Still customs has role to play in decentralised
system, it is democratic, sometimes quick to
develop, easy to change, consensus approach.
 Sources of International Law
• Customs implies: (i) actual practice (ii) opinio
juris sive necessitatis (Libiya/Malta case)
• Out of the two positivists give more
importance to opinio juris (Consent Theory)
• Kelson regards that discretion should be given
to courts to decide.
 Sources of International Law
• State Practice (Material Facts) depends upon
duration; consistence; repetition; generality
• Duration- not specified. Customary norms
related to Air and Space Law developed very
quickly
• Continuity and Repetition- Asylum case
• Uniformity- Anglo-Norwegian Fisheries case;
North Sea Continental Shelf case
 Sources of International Law
• Nicaragua case- rigid uniformity not required; general
adherence is sufficient. Occasional breach may be
treated as breach of the rule rather than saying that
custom has not developed or new custom has
developed.
• Unilateral/Unsubstantiated claims not allowed.
• Practice of concerned states; powerful states; majority
states are important points
• Failure to act/ abstentions may lead to rules if
consciously done (SS Lotus case)
 Sources of International Law
• How to find state practice: judicial decision,
adminstrative acts, newspaper, journal
publication, historical records, statements by
leaders, statements during travaux
preperatoires, Voting in UNGA, municipal law
(Scotia case) etc.
 Sources of International Law
• Opinio Juris- belief to be legally obligatory
• Difficult to prove being subjective but
necessary.
• SS Lotus case- conscious duty to abstain
• Change in opinio juris ( 3 nautical mile to 12
nauticle mile in LoS) accepted in Nicarugua
case- it made overt manifestation more
important however key is ‘attitude of the state’
 Sources of International Law
• Protest, Acquiescence and change in behaviour.
• Acquiescence is tacit recognition in good faith
and equity (Anglo Norwegian Fisheries case)
• But states may fail to protest because of political
reasons. It must be backed by consciousness;
constant protest may create exception- it can be
source of new law
• General/Regional/Local customs (Right to
passage case, Asylum case)
 Sources of International Law
Treaties
• Treaties are more modern source of international law; more
sophisticated. It is written agreement known by various names
such as Convention, Treaty, Protocol, Declaration, Charter etc. It is
more direct and formal and not vague like customs because of
opinio juris.
• This written agreement which is legally binding contains rules of
behaviour, relationship etc.
• The obligatory nature of treaty can itself be found in customary
int. law (pacta sunt servanda).
• Treaty is the most important source of international law. Some
writers consider it to be superior to customs.
 Sources of International Law
• Treaties are of two kind: (i) law making treaty; (ii) treaty contract
• Law making treaties are general; depicts the perception of the
states upon a topic; establishes the new rules of engagement for
int. conduct;
• Doctrine of Privity and Treaties (North Sea Continental Shelf
Case)
• But where treaty codifies customary law then non-parties are
bound.
• Acceptance of the provisions of the treaty (not formally) can
generate customary law depending upon number of parties,
importance of the provision etc.
 Sources of International Law
• Provision of a treaty + opinio juris= customary law
not just for the parties to the original treaty provided
the provision is of norm creating character (North
Sea case)
• Even if treaty provision and customary law is same,
they will have separate existence; treaty will not
subsume customary law (Nicaragua case). State may
have reservation wrt to the treaty provision but not
for customary law. Different rule of interpretation
may apply to treaty provision and customary norm.
 Sources of International Law
• Treaty contracts are not norm creating- because of
limited parties and specific topic.
• But it may also codify customary rule; and if same
rule (new) of a bilateral treaty is being repeated in
other bilateral treaties, then it can create a new
customary law.
• Although treaties are made primarily made
between states, IOs also make treaty with states.
But treaties primarily deals with relation b/w states.
 Sources of International Law
• Two important treaties wrt to interpretation, application, nature of
treaty are (i) Vienna Convention on the Law of Treaties (VCLT)
1969; and (ii) Convention on Treaties between States and
International Organisations, 1986.
• VCLT partly comprises of customary rules. Ex. Art. 26 pacta sunt
servanda
• Art. 2 (a)- Definition of Treaty- excludes pvt. Int. law and treaty
b/w state and IO. Read Art. 3
• Form of treaty not important; intention is. In Qatar vs Bahrain
case, Minutes of Meeting was considered to be binding.
• Hard law/Soft law including MoUs
 Sources of International Law
• Making of Treaty- No prescribed manner or
procedure. It can me made of HoS or a MoS.
• It varies from state to state, who can make
treaty (Crown/President/PM/Minster)
• Yet certain formalities need to be fulfilled:
(i) Full power and exceptions, Art. 2 and 7;
general full power and specific full power
(UK); Art. 8
 Sources of International Law
• Consent of the state- Negotiation, Adoption and
Signing; Art. 9; majority or unanimous decision;
Consent of the state may be proved by various means-
Art. 11
• Art. 12- Consent by ratification is most popular but
consent by signature is also followed (routine treaty,
bilateral treaty)
• Art. 13- Consent by exchange of instrument
• Art. 14- Consent by ratification (State Practice)
• Art. 15- Consent by accession
 Sources of International Law
• Reservation to a provision of Treaty- Art. 2 (def.)
• Unhappiness over a specific provision- refuse to accept it.
• Reason- harmonise different culture, political setup, sovereignty, practical. Other side is
that it can jeopardize the process itself.
• Important in case of multilateral agreement.
• Different from statements not intended to have juridical effect (political statement,
understanding, interpretive statement).
• Anglo-French Continental Shelf case, Belilos case.
• Restrictive approach to Reservation- Treaty is a package deal- take all or leave all;
therefore reservation needs to be accepted by all state parties; overturned in Reservations
to the Genocide Convention case by ICJ. Brought in ‘compatibility test’ with object and
purpose of the treaty.
• Art. 19, 20, 21
• Reservation must be in writing, communicated to all states; when accepted [Art. 20(5)].
• Reservation can be withdrawn following the same procedure of establishing reservation.
 Sources of International Law
• Entry into force- Art. 24 and 28 of VCLT; 110 of UN
Charter; different treaties may have different
provisions as to entry in force; if ratification is
necessary, states who have merely signed the treaty
are not bound by the treaty even if it comes into force.
Need to submit the treaty to the UN Secretariat.
• Provisional Application- Art. 25 VCLT
• Application of Treaty- unless contrary agreed, treaty
has no retrospective effect; Art. 29- application on
whole territory unless contrary agreed.
 Sources of International Law
• Rule wrt to successive treaty on the same subject- Art. 30
of VCLT, it is subject to Art. 103 of UN Charter i.e. rule wrt
conflict b/w any treaty and UN Charter.
• Rule respect to third parties- Art. 34-38, VCLT. See Art. 2(6)
of UN Charter- third parties are bound to maintain peace
and security, Art. 75
• Amendment and Modification of a Treaty: Amendment
implies changing the provisions of the treaty which affects
all parties; whereas Modification implies non application
of certain provisions of the treaty between specific parties.
 Sources of International Law
• Art. 108 of UN Charter- Amendment will come
into force after ratification by 2/3rd of the total
members including P5.
• Art. 40 VCLT – procedure of amendment
• Art. 41- modification
• Interpretation of Treaty- Art. 31-33; Three rules-
(1) ordinary and literal interpretation; (2) on the
basis of intention of the party; (3) object and
purpose of the treaty
 Sources of International Law
• Invalidity, Termination and Suspension of
Treaty- Art. 42-64 of VCLT
• Consequences of Invalidity- Art. 69-72
• Procedure of invalidity…etc.- Art. 65-68
• Rebus sic stantibus
 Sources of International Law
General Principles of Law recognised by civilized nations
• Sometimes there may be no law touching that issue (non liquet). In such
cases, judges proceed to deduce a rule that will be relevant, by analogy
from already existing rules or directly from the general principles that
guide the legal system
• For example, justice/equity/fairness/good faith
• Such situation may happen in int. law frequently as it is underdeveloped.
• Some others trace its origin in Natural Law whereas others in Positive
Law
• General Principles are separate source but limited in scope. It depends
upon its recognition by international tribunal.
 Sources of International Law
• Chorzow Factory Case- obligation to make reparation for
violation of contract
• German Settlers in Poland Case-pvt. Rights not affected
by change of sovereignty.
• Corfu Channel Case- use of circumstantial evidence; res
judicata
• Temple Preet Vihar Case- principle of estoppel
• AMCO v. Republic of Indonesia case- Full Compensation
• Rann of Kutch Arbitration- principle of equity
 Sources of International Law
• Judicial Decisions- Art. 59 of ICJ statute. It is subsidiary
source of int. law.
• Practically courts consider previous judgments to
come to any conclusion.
• Example as a source- Reparation Case, Right to
Passage case, Trail Smelter case, Island of Palmas case.
Its not just the decision of ICJ; it can be of arbitration
tribunal etc.
• Writers- the teachings of the most highly qualified
publicists as a subsidiary source.
 Sources of International Law
Other Sources
• UNGA Resolutions- decolonisation, apartheid
• Practice of IGOs
• Soft Law
• Int. Law Commission’s work- created by UNGA to
develop and codify int. law.
• Unilateral Acts i.e. official position (recognition or
protest or reservation) of any state.
• Jus cogens and Erga omnes