CIVIL SERVICE INSTITUTE

PUBLIC INTERNATIONAL LAW I

UNIT TWO:- SOURCES OF
INTERNATIONAL LAW
SOPHOMORE CLASS

April, 2024
Hargeisa, Somaliland
05/11/2024 Abdikani Saleban(LLB, LL.M) 1
Unit objectives
 After completion of this unit unit student shall be
able to:-
 Describe the primary and secondary sources
of International law;
 Explain treaty and its classifications as a
source of international law;
 Elaborate Custom and its validity features of
becoming one primary source of law;
 Describe the concept of Opinio juris as a
psychological element of customary IL.
Sources of International Law

 Generally we have five sources of international law;

(1) Treaty, (2) Custom, (3) general principles of law, (4) judicial
decisions and (5)Teachings of reputable scholars.
 When we are talking about Sources there is a difference
between formal (legal) and material source of law.
 Here when we are referring to law making sources, we are
referring procedure or methods by which rules become legally
binding.
 When are talking about the requirements under which rules
become binding.
 On the other hand when we are talking about material sources
we are talking about sources in the historical sense. Material
sources tell were the law is to be found, while formal sources
describe what the law is.
Cont…

What are the sources of international law?

 It is article 38 of the statue of the ICJ (carbon copy of
the statue of PCIJ) that is usually accepted as
constituting the source of international law.
 However article 38 doesn’t say the following are the
sources of international law, rather it tries to give the
court a direction/guidance as to what sources it
should consider when it disposes cases containing an
international disagreement.
 It is dominantly used as the document leading to the
possible sources of international law because there is
no other document explaining better the sources of
international law.
Cont…
 There are a number of criticisms pointed on article 38.
 It doesn’t list all sources of international law.
Additional sources have evolved as sources of
international law. E.g. resolutions of international
organizations (UNSC resolutions passed under
chapter seven are binding with respect of that
matter,
 It includes aspects of sources which are not genuine
sources. There are primary and secondary sources
under article 38, judicial decisions and learned
writers forming secondary sources.
 It doesn’t provide hierarchy amongst the sources
provided (with the exception of differentiating
primary and secondary sources).
Treaties

 International conventions or treatise are the only

way by which states create international law
consciously or deliberately.
 So unlike customary international law, which
develops sometimes without the knowledge of
some states consent, treaties develop with the
consent of the parties bound by it.
 Treaties are now the most important source of
international law overtaking the previously
dominant custom.
Cont…

 Treaties could be bilateral/particular/ or multilateral

/general/.
 Once a treaty satisfies a formal requirement a treaty
imposes obligations on states that are party to it.
 If a state party fails to abide by that treaty, that state will
incur international obligations and face consequences.
 (a)Treaties bind only parties to them (principle of
privity). A state is bound by treaties only vis a vis other
state parties and not in relation to other non-contracting
states.
Cont…

 However, there are exceptions to such principle, e.g.

dispositive treaties (territorial treaties) bind new
states that have seceded from the contracting state.
 This is so because these kind of treaties in their
nature prescribe rules regarding common interests.
 The other exception is when the treaty reflects
international customary norm it will be bound by
the preexisting customary international law rule
applying to all states.
 Cont…

b) There is a theoretical debate as to whether treaties

impose legal obligations or not?.
 There is a difference between mere obligations and
legal obligations.
 The difference could be clearly dealt out in one phrase
“are treaties laws?” do they create obligation or law.
 Because of these scholars have come up with two
types of treaties; contract treaties and law making
treaties.
Cont…
 Contract treaties are usually bilateral treaties which
impose or create obligations and only on state parties to
those treaties.
 On the other hand multilateral treaties are usually
regarded as law making treaties as they usually create
obligations or law on parties to the treaty as well as to
non-member states (sometimes).
 But doesn’t this contradict with privity of treaties? Yes,
but most multilateral treaties usually codify preexisting
customary international law rules which are binding (in
principle) on all states.
Customary International Law

 Customary international law is a law which has

involved from practice or custom of states.
 Customary international law is all about the conduct
or behavior of states.
 However the conduct by itself is not sufficient as the
psychological element is equally necessary.
 Thus, customary international law rule is composed
of two elements; the conduct element and opinion
juris element.
 The conduct element is the material element which
consists of actions or omissions of states (and now a
days actions of non- state actors).
Cont…

 Opinion juris (“accepted as law” under article 38 of the

ICJ statutes) on the other hand is the psychological
element which is the belief on part of states that acting
or refraining to act in a certain manner is their legal
duty.
 This element is very essential as it enables as to
distinguish mere usage from legally binding custom.
 The two elements have to be cumulatively satisfied for
an act or omission to serve as a binding international
custom. Courtesy acts are not binding custom.
Cont…

 Custom was the foundation stone on law of nations

before the coming into picture of treaties. However
presently customs have taken the forefront of modern
international law. Custom is always available to fill the
void of treaties.
 Custom enables international law to develop with the
needs of time as they are flexible. The amendment of
custom requires a formal process while the change in
custom only requires a change in practice.
 But the problem with custom is that it has uncertainty
and lack of speed in development (in principle it takes
time).
Cont…

 The state practice itself has sub elements, it has to fulfill

some requirements. These requirements are consistency,
uniformity, generality and duration.
 When we read article 38 (1) (b) of the statute of the ICJ
it doesn’t talk about any of these criteria, however these
standards were developed by the ICJ and PCIJ in their
previous decisions.
 Consistency: the state practice in question must be
reasonably consistent. That given state practice of
different countries should follow the same path and
there should be no contradictions.
 However the requirement should under no
circumstances be interpreted as requiring a complete
consistency, but rather a substantial consistency.
Cont…

 Continuity & Repetition: The basic rule with regards

to continuity and repetition was based on the asylum
case (decided by ICJ in 1950).
 The court declared that customary rule should be in
accordance with a constant and uniform usage practiced
by the states in question.
 Some authors argue that the principle of repetition and
continuity is embedded in the principle of uniformity
and consistency.
Cont…
 Generality: For a universal or a general customary
international law rule to develop the practice must be
fairly general. However, this requirement of generality
doesn’t apply or loses power when it comes to regional
customs. By generality we mean that a significant
amount of states need to support the practice for it to be
a custom.
 By generality we don’t mean that every state should
support it (unanimity or universality) but rather general
customary law.
 The degree of generality varies from case to case (the
degree of generality is higher for rules limiting state
sovereignty as compared to rules enhancing state
sovereignty).
Cont…
 Duration: duration as a requirement is different
from repetition. As in duration we are talking about
the amount of time that should lapse before a given
practice becomes a customary international law
rule.
 Malcom Shaw clams that duration is not the most
important element of state practice, duration can be
one requirement sometimes, but we should not
always insist of the fulfillment of duration
requirement.
 ICJ also accepted this requirement under different cases.
Cont…

 Opinio Juris Necessitates: once we have ascertained

the existence of state practice fulfilling a certain
state practice we still have to look for the mental
element.
 This is an important rule that distinguishes
customary international law rule from usage.
 Unlike state practice it is extremely tough to prove
opinion juris. It is the belief on part of states that
acting or refraining to act in a certain manner is
their legal duty.
General Principles of Law

 From the reading of article 38, we could ascertain that

general principles of law are primary sources of
international law.
 However it is a known fact that treaties and custom
supersede general principles of law.
 We say this because international law is a system which
is primarily created by states.
 In both treaties (directly/direct expression of consent)
and custom (indirectly/indirect expression of consent)
states are involved in the creation.
 However, general principles are different, in the sense
that they don’t require the consent of states.
Cont…

 When we are referring to general principles of law

are we referring to principles of international law
(such as “sovereign equality of states”) or national
law (such as “Res Judicata”)?
 Article 38 (1)(c) doesn’t talk about such
distinction or which one applies as a matter of
fact, however most scholars agree, that it applies
to both national and international law principles as
a gap filling choice.
 Judicial Decision
 When article 38(2) says that judicial decisions and
teaching of scholars are to be seen as a subsidiary
source it is sending a message that these cannot be
considered as law creating sources but rather as law
elucidating, determining or defining sources.
 Article 59 of the statute of the ICJ confirms that
judicial decisions are indeed not considered as law
creating sources.
 The article deliberately excludes the principle of “stare
decisis” from the international legal system. It provides
that decisions of the ICJ are binding only on parties to
that given case and only as regards the matter in
question.
Cont…
 from a legal point of view, the court doesn’t have a
law making power. But in practice what we see is the
ICJ heavily relying on its decisions rendered
previously.
 It does this for various reasons such as consistency
and its attempt to influence the development of
international law.
 However, states would love to preserve the law
making power for themselves.
 ICJ has two types of jurisdiction advisory jurisdiction
and contentions jurisdiction.
 When ICJ gives decisions based on its contentious
jurisdiction the decision would be binding on the
parties to the case. In its contentious jurisdiction the
Cont…
 The advisory jurisdiction doesn’t entertain
disputes per se and opinions of the ICJ are not
legally binding.
 The advisory opinions despite not being binding
has an influential character. Thus states usually
prefer to abide by ICJ advisory opinion.
 When it says judicial decision is it referring to the
ICJ or also other courts? Generally the reference
towards judicial decision is to different judicial
and quasi-judicial bodies (such as ICC, ICTY,
ICTR).
Learned Writers/Scholarly publications
 The writing of the most highly qualified publicist is
considered as the second form of subsidiary
international law rule. Writing of scholars cannot
create law but this can be used as law determining
material source of law.
 During the formative stages of international law the
role writers played was quite different from present
perception. For example Hugo Grotius’s book was not
only considered a book, but was also regarded as a
rule/law.
 Not all writings qualify as subsidiary sources, they
have to be writing of renowned and acknowledged
writers.
Other possible Sources
 We have said that the list under article 38 of the ICJ is
incomplete from the outset.
 Resolutions of international organizations, such as
general assembly resolutions.
 Yes they are non-binding, however they contribute
towards the development of international law (both
treaty law and custom) and clarify the content of an
existing customary law.
 So shouldn’t we consider such resolutions as secondary
sources of international law rule? General assembly
resolution on the definition of aggression passed in the
year 1974 is a very powerful definition. Security
Council resolution passed by the council under chapter
seven are binding.
Cont…

 Soft law is a term of act used to describe two

different notions.
 The first one is that soft law are rules of
international law that do not stipulate concrete
rights or obligations but which have normative
value.
 They are legally binding but fail to provide clear
obligations and rights.
 They are vague and quite flexible. Most rules
under environmental law (“reparation obligation”)
is regarded as being soft law.
Cont…

 Article 2 of the ICESCR states that “countries have

obligation to take steps individually or through
international assistance with the view of achieving
economic development”, but what does this mean in
practical terms.
 The second notion of soft law is de lege referenda, it
doesn’t have a normative value or impose legal
obligation but it tells you the opinion of some
countries or people what the law should be or may be
in the future.
 It might shade some light of what the law would look
like in the future, so soft law in the second notion
might shape state behavior.
Hierarchy of sources & jus cogens
 What happens when a treaty contradicts an
existing custom? What happens when a treaty
complements an existing custom?
 When we talk about hierarchy of laws under
international law we are normally talking about
the position of treaties and custom.
 And we are talking about them under two
situations when they complement/supplement and
when they contradict.
Cont…

 When custom and treaty complement:-

 This happens when there are parallel obligations
imposed by both custom and treaty. Custom was the
preexisting one and a treaty, which is complementary,
comes after wards (that is normally the case under
international law).
 Treaties reflect the consent of states to be bound by
them in an equivocal manner.
 Additionally, the contents of treaties are more or less
clear and certain in comparison with international
custom.
Cont…
 Rule No.1 when you have a treaty and custom
complementing each other and when the treaty comes
later in time as far as member states to that given
treaty are concerned it is the treaty that governs their
relations. But for non-member states it would be the
customary rule which will bind them.
 In the Nicaragua case, the ICJ provided another
principle saying that custom doesn’t cease to bind
states even if the state has become a party to a treaty.
 Thus the decision have further qualified the rule by
claiming that it is both custom and treaty that apply to
the member state of a treaty.
Cont…

 In the Nicaragua case, the United States which was a

member of the UN charter that provides for the
prohibition on the use of force (to which the U.S. had
reservations on the ICJ statute of the court having
jurisdiction on the American obligation arising out of
multilateral treaties such as the UN charter).
 But the court concluded that America despite not
being bound by the “prohibition on the use of force”
under the charter is at the same time as one state of the
world bound by customary international law rule
regarding the prohibition on the use of force.
Cont…
 Thus, in principle, when we have treaty and custom
having the same/similar content, a treaty that comes at a
later time prevails. However, as an exception, that
doesn’t totally displace the application of that customary
international law rule.
 In principle, when we have treaty and custom having the
same/similar content, a treaty that comes at a later time
prevails. However, as an exception, that doesn’t totally
displace the application of that customary international
law rule.
Cont…
 Why do we bother to put the two sources under a
ladder if they both lead to similar conclusion?
 Treaty and custom are not identical but rather
complementary. Thus there could be possibility for a
difference in application.
 The other exception relates to obligations erga omnes
(Jus Cogens).
 Jus cogens norms are fundamental norms of
international law from which a state cannot derogate.
 Thus with respect to erga omnes norms or Jus cogens
the principle under rule one doesn’t apply, meaning a
treaty coming at a letter time will not prevail.
Cont…
 This is due to article 53 of the Vienna convention on the
law of treaties which states that “a treaty is void if at the
time of conclusion it conflicts with the peremptory norm
of general public international law”.
 There is little consensus on the content/subject matter of
Jus cogens norms.
 Few of them regarding which there is consensus are
prohibition of Genocide, prohibition on the use of
force and self-determination (recently).
When Custom and Treaty contradict

 Here again we apply interpretation rules relating to

time, the law that comes latter should apply better
than the law that came out prior.
 The other rule of interpretation used is, specific rule
prevails over general rule, custom or treaty
imposing particular obligations prevail over one that
imposes general obligation.
 This principles, however, is qualified by article 53
of the Vienna convention on the law of treaties.
Cont…
 what do you do when a custom comes later to a treaty and
they contradict?
 The fact that states have concluded a treaty doesn’t mean that
there isn’t going to be any change in the future. Practically
countries have a perfect way of amending treaties.
 Theoretically, there is a chance where a custom could
possibly amend a treaty.
 Practically, however, it is almost impossible for an unclear
and uncertain custom to replace a readymade, clear and
certain treaty.
 The content of customary international law rule has to be
very clear and strong state practice supported by a certain and
unequivocal opinion juris for it to replace an already existing
treaty.
Thanks for your
attention