SOURCES OF INTERNATIONAL LAW

ABSTRACT

The changes in international community since 1945 have led to

fundamentaldisputes on the sources of international law and it must be admitted
that they have
become an area of considerable theoretical controversy. In particular, the
twotraditional sources, custom and treaty, are now often difficult to distinguish
clearly.
The present paper attempts to clearly identify the interaction between the two main
sources, namely customary law and treaty law, and clarify the controversy relating
to the hierarchy among the sources of international law. The writer finds that
custom and treaties are still the primary sources of international law and that there
isno hierarchy between them: they are of equal status. In recent years, however, a
newcategory of international rules, jus cogens, has come into being, which is
hierarchically superior to all the other rules of international law. The writer
suggeststhat between treaty law and customary law, the practice is that if there is a
treatybinding the two parties to a dispute, the Court will, first of all, look at the
treaty,which is a jus scriptum. Even in such a situation, however, we cannot say
thatcustomary law is entirely irrelevant. The Court in most cases applies both
treaty lawand customary law simultaneously so that it can deal with all the legal
issuesinvolved in the dispute. If there is no treaty binding the two parties to a
dispute, thenthe Court has to rely exclusively on customary international law for
thedetermination of the dispute. If no relevant rule can be found in treaty law and
custom, then the court may apply the general principles of law. The other sources
are merely secondary or material sources and most of them can be used as
evidenceof customary law.

Introduction

In every legal system there must be some criteria by which legal norms or ‘laws’
are recognized. It must have reasonably clear ‘sources of law’. Generally speaking,
thesesources of law are either ‘law creating’ or ‘law identifying’. That is why
writersusually distinguish the ‘formal sources’ and the ‘material sources’ of law. 1
Accordingto Salmond, “A formal source is that from which a rule of law derives its
force and validity. The material sources, on the other hand, are those from which
is derivedthe matter, not the validity, of the law. The material source supplies the
substance ofthe rule to which the formal source gives the force and nature of law”. 2
Simply put, a formal source represents the mechanism through which the law
comes into being,whereas a material source indicates where the legal rules come
from, that is, wherethe rules are located. In other words, the function of a formal
source is ‘law creating’whereas the function of a material source is ‘law
identifying’.Where do international lawyers look to find international law? There
are, in thecontext of international law, recognized and accepted methods by which
legal rulescome into existence (formal sources) as well as several ways in which
the precisecontent of legal rules can be identified (material sources) 3. These are the
1
See, Brownlie, Ian, Principles of Public International Law, 5th.ed., 1998, 1; Schwarzenberger,
Georg, International Law, vol. 1, 3rd.ed., 1957, 26-27; Hart, H.L.A., The Concept of Law, 1961,
246-7.However, Professor Brownlie is of the following view: In the context of international
relations, the useof the term ‘formal source’ is misleading because there is no constitutional
machinery of law-making inthe creation of rules of international law. Brownlie, op. cit., 2.
2
Salmond, J.W., Jurisprudence, 7th.ed., 1924, para. 24.
3
For example, a rule will be legally binding if it meets the requirements of a custom, which is a
formal source of international law, and its substance will be indicated by State practice, which is
the material source of custom. The term evidence is then used in the sense that diplomatic
correspondence, for example, is evidence of State practice.
sources ofinternational law.The most important source of international law for
centuries was customary law,evolving from the practice of States. 4 The recent
attempts to codify international law and the conclusion of multilateral treaties in
many important areas have sought toclarify the law and to establish universally
accepted norms. But customary law hasstill retained its predominance over treaty
law or other sources in many other areas,
such as, for example, State immunity or State responsibility. The changes
ininternational community since 1945 have led to fundamental disputes on the
sourcesof international law and it must be admitted that they have become an area
ofconsiderable theoretical controversy. In particular, the two main traditional
sources,custom and treaty, are now often difficult to distinguish clearly. 5The main
objectivesof the present paper, therefore, are to clearly identify the interaction
between the twomain sources, namely customary law and treaty law, and to clarify
the controversyrelating to the hierarchy among the sources of international law.

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 38 of the Statute of the International Court of Justice is always the starting
point for any study of the sources of international law.
Article 38
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

4
See Bernhardt, R., “Customary International Law”, (1995) 11 Encyclopedia of Public
International Law (EPIL), 1255-62.
5
As Jennings put it in 1981: “I doubt whether anybody is going to dissent from the proposition
that there has never been a time when there has been so much confusion and doubt about the
tests of the validity – or sources – of international law, than the present”. See Jennings, R.,
“What is International Law and How Do We Tell When We See It?” (1981) 37 ASDI, 59-88.
 (a) International conventions, whether general or particular, establishing
rules 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 the rule of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequoet bono, if the parties agree thereto.
These provisions are expressed in terms of the function of the Court, but they
represent the previous practice of arbitral tribunals, and are generally regarded as
an authoritative statement of the sources of international law.6 Some writers have
criticized the Article on the ground that it does not list all the sources of
international law, or that it includes aspects which are not genuine sources, but
none of the alternative lists which have been suggested has won general approval. 7
It is therefore proposed to examine the sources listed in the Court’s Statute before
considering other possible sources of international law.

TREATIES
Article 38 (1) (a) of the Statute of the International Court of Justice requires the
Courtto apply “international conventions, whether general or particular,
establishing rulesexpressly recognized by the contesting States”. The word
6
Akehurst’s Modern Introduction to International Law, 7th. Revised Ed., 1997, 36.Brownlie,
Principles of Public International Law, 5th.ed., 1998, 3.
7
The International Court of Justice has been prepared to consider other sources not listed in
Article38. On the practice of the Court, see Mendelson, M., “The International Court of Justice
and theSources of International Law”, in Lowe, V., and Fitzmaurice, M., (eds.) Fifty Years of the
InternationalCourt of Justice, 1996, 63-89.
‘convention’ means a treatyand whatever the nomenclature is,8 the substance is the
same: it is an agreement madebetween two or more States or other subjects of
international law.

Treaty as a source of international law

A treaty is based on consent. Such consent may be expressed by one of the

acceptedmethods (signature, ratification, accession, etc.). Once a treaty has entered
into force,it is binding on the parties to it. By virtue of the maxim
pactasuntservanda, Statesparties shall perform the treaty in good faith. In other
words, the treaty is the law forthe parties. Failure to comply with the terms of a
binding treaty will incurinternational responsibility unless a defense is available.9
Being based on consent, the general principle is that only the parties to a treaty
arebound by its terms. As the Permanent Court of International Justice in 1926 put
it inCertain German Interests in Polish Upper Silesia, “a treaty only creates law
asbetween the States which are parties to it’ 10. Hence, for third States treaties
aresomething devoid of any legal consequence: they are a thing made by others
(res inter aliosacta). To put it differently, a treaty may not impose obligations or
confer rightson a third party. This is often expressed in terms of the Latin maxim
pactatertiisnecnocentnecprosunt. This general principle is now stated in Article 34
of the ViennaConvention on the Law of Treaties, 1969, which reads: “A treaty
does not createeither obligations or rights for a third State without its consent”.11
8
International agreements may have various names: treaties, conventions, protocols, pacts,
covenants, statutes, final acts, and so on.
9
Case Concerning Gabcikovo – Nagymaros Project (Hungary v Slovakia) (1998) 37 ILM 162
(Danube Dam Case).
10
Certain German Interests in Polish Upper Silesia, (1926) PCIJ Series A. no. 7.at 29.
11
There are a number of exceptions to this general rule:
(1) It is recognized that there is a distinct category of ‘dispositive treaties’ that create an
objective legal regime binding upon third States. See Case Concerning Kasikili/Sedudu
Law-making treaties and treaty-contracts

Some writers have tried to argue that treaties should be regarded as sources of
international law only if they resemble domestic law statutes in content; that is to
say,only if they are the so-called ‘law-making treaties’. A law-making treaty has
beendefined as a treaty concluded by a substantial number of States and stipulates
newgeneral rules for future international conduct or abolishes, modifies or codifies
existing customary or conventional rules of a general character.1213 According to
thistheory, the so-called ‘treaty-contracts’, on the other hand, are treaties between
two oronly a few States, dealing with a special matter concerning these States
exclusively.
These treaties (for instance, a treaty whereby one State agrees to lend a certain sum
ofmoney to another State) resemble contracts in domestic law and are not a source
ofinternational law but are merely legal transactions.We cannot accept such an
idea. It is too vague and imprecise to justify regarding lawmakingtreaties as the
only treaties, which are a source of international law. The socalledtreaty-contracts
may, as between the parties thereto, constitute particular law.
That is why the expression ‘general or particular conventions’ is used in Article
38(1)of the Statute. Moreover, even bilateral treaties may provide evidence of
customaryrules.13 The better view, therefore, is to regard all treaties as a source of
law.14

Island (Boswana v Namibia), ICJ Judgment of 13 December 1999. For s discussion see
Shaw, Malcolm, (2000) 49 ICLQ 964.
(2) A multilateral treaty declaratory of existing customary international law will have
effect upon non-parties; however, in this instance, the non-party is bound not by the
treaty but by the customary rule. See, O’Brien, John, International Law, Cavendish
Publishing Ltd., London, 2001, 331.
12
See, McNair, The Law of Treaties, Clarendon Press, Oxford, 1961, 5, 124.
13
Brownlie, Principles of Public International Law, 5th.ed., 1998, 13.
14
Akehurst’s Modern Introduction to International Law, 7th.ed., 1997, 38.
Interaction between treaty law and customary law
Customary international law derives from the practice of States. It is by nature
slow inits law-making process. There is lack of precision in customary rules, and it
is veryoften quite difficult to ascertain their exact contents. On the other hand,
treaty-makingprocess is relatively faster. States may enter into a treaty at any time
when they feelthat a new rule is required. Treaties are the only way by which
international law canbe made by a deliberate act of States. In this way treaties are
contributing to the rapidexpansion of international law.15 Since treaty law is a kind
of written law (jus scriptum), it possesses the merit of considerable precision. It is
not surprising,therefore, that treaties are fast becoming the most important source
of internationallaw.

Treaty as a material source of customary law

North Sea Continental Shelf cases16 are concerned with the role of multilateral
treatiesas State practice and hence as a material source of customary international
law binding upon parties and non-parties alike. In the Court’s view, a treaty rule
mayrelate to custom in one of three ways:
(1) It may be declaratory of custom at the time when the provision is adopted 17
(thatis, it may codify a pre-existing rule of customary international law);
(2) It may crystallize custom, as States agree on the provision to be adopted during
thetreaty drafting process;

15
One of the most significant changes in international law has been the growth in the volume of
treaties. The evidence can be seen in the United Nations Treaty Series. Since 1945 over 30,000
treatieshave been registered with the United Nations.
16
(1969) ICJ Rep. 3.
17
The Preamble to the Convention on the High Seas, 1958, states that it is “generally declaratory
ofestablished principles of international law”.
(3) It may serve to generate a rule of customary international law in the future by
subsequent practice of States.
When a treaty codifies existing customary law, as was the case with much of the
Vienna Convention on Diplomatic Relations, 1961, the substance of the
obligationsspecified in the treaty may be binding on all States, because:
(1) Those States that areparties are bound by the obligations in the normal way
since they are parties; and
(2)States that are not parties are also bound by the obligations because they are
rooted incustomary law. The substance of the obligation is the same for parties and
non-parties,even though the origin of that obligation is different.
Many multilateral treaties are a mixture of codification of current customary law
andprogressive development of that law. In that case, parties to the treaty are
bound in thenormal way by all of the obligations in the treaty, but non-parties are
bound by thoseobligations, which have in fact attained the status of customary law.
Furthermore, thefact that the treaty is intended to lay down a code of conduct for
all States in the futuremay mean that such a treaty may serve to generate rules of
customary law, similar tothose found in the treaty, in the future. If this happens,
non-parties will be bound bythe new customary law.

Parallel existence of treaty law and customary law

The question before the Court in the Nicaragua case was whether customary rules
onthe use of force and intervention continued to bind the parties in parallel with
theobligations under the UN Charter, so that the Court could apply them despite
the US’smultilateral treaty reservation. Holding that they did, the Court stated:

177…[T]he existence of identical rules in international treaty law

and customary law has been clearly recognized by the Court in the
 North Sea Continental Shelf cases. To a large extent, those cases
turned on the question whether a rule enshrined in a treaty also
existed as a customary rule, either because the treaty had merely
codified the custom, or caused it to “crystallise”, or because it had
influenced its subsequent adoption….more generally, there are no
ground for holding that when customary international law is
comprised of rules identical to those of treaty law, the latter
“supervene” the former so that the customary international law has
no further existence of its own.

INTERNATIONAL CUSTOM

The second source of international law listed in the Statute of the International
Courtof Justice is ‘international custom’18. Article 38 (1)(b) refers to“international
custom,as evidence of a general practice accepted as law”. 19 As confirmed by
theInternational Court of Justice in the Nicaragua case20, international custom
isconstituted by two elements: (1) the objective one of ‘a general practice’; and (2)
thesubjective one ‘accepted as law’, the so-called opiniojuris. In the Continental
18
Although occasionally the terms are used interchangeably, ‘custom’ and ‘usage’ have different
meanings. A usage is a general practice, which does not reflect a legal obligation, and examples
areceremonial salutes at sea and the practice of exempting diplomatic vehicles from parking
prohibitions.
19
On international custom generally see, Akehurst, M., “Custom as a Source of International
Law”,(1974-75) 47 BYIL 1; Danilenko, G.M., “The Theory of International Customary Law”
(1988) 31 GYIL9; Kirchner, J., “Thoughts about the Methodology of Customary International
Law”, (1992) 43 AJPIL,215-39; Wolfke, K., “Some Persistent Controversies regarding
Customary International Law” (1993)24 NYIL, 1-16; Meron, “The Continuing Role of Custom
in the Formation of InternationalHumanitarian Law”, (1996) 90 AJIL, 238-49.
20
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), (1986) ICJ
Rep.14 at 97.
Shelf(Libya v Malta) case21, the Court stated that the ‘substance of customary
internationallaw must be looked for primarily in the actual practice and opiniojuris
of States’.This is the established doctrine, accepted by States, international
tribunals and mostwriters alike.

State Practice

The formation of a customary rule requires a general and consistent State practice.
Then what acts constitute State practice? Generally speaking, the actual words and
actions and omissions of States constitute State practice.

Meaning of State practice: What States do and what States say

It is sometimes suggested that State practice consists only of what States do, not of
what they say. For instance, in his dissenting opinion in the Fisheries case, Judge
Read argued that claims made to areas of the sea by a State could not create a
customary rule unless such claims were enforced against foreign ships. 22 But in
thelater Fisheries Jurisdiction case ten of the fourteen judges inferred the existence
ofcustomary rules from such claims, without considering whether they had been
enforced.23 The better view therefore appears to be that State practice consists not
only of what States do, but also of what they say.State practice also includes
omissions; many rules of international law forbid States todo certain acts. 24 Even
silence on the part of States is relevant because passivenessand inaction with

21
Continental Shelf (Libya v Malta) case, (1985) ICJ Rep. 29
22
Anglo-Norwegian Fisheries case, (1951) IC J Rep. 116, at 191.
23
Fisheries Jurisdiction case (United Kingdom v Iceland) (1974) IC J Rep. 3, at 47
24
Article 2, The ILC’s Draft Articles on the Responsibility of States, 2001.
respect to claims of other States can produce a binding effectcreating legal
obligations for the silent State under the doctrine of ‘acquiescence’.25

Where to look for evidence of State practice; what are the material
sources
of custom?

The material sources of custom or evidence of State practice can be found in

thefollowing:26
(1) Treaties;27
(2) Judicial decisions;28
(3) National legislation29;
(4)Diplomatic correspondence30;
(5) Opinions of national legal advisors;
(6) Resolutions relating to legal questions of the General Assembly
(7) Practice of international organizations.

25
Akehurst’s Modern Introduction to International Law, 7th.ed., 1997, 43.
26
The International Law Commission has suggested a non-exhaustive list of the forms that State
practice may take, Yearbook of the ILC, 1950, vol. II, 368-72. The present list is mainly based
on the list of the ILC. See also Brownlie, Principles of Public International Law, 5th.ed., 1998, 5.
27
Treaties, being the most easily accessible documents to objective analysis as a manifestation of
conduct and of the view of the contracting parties, belong to the most important evidence of
customary law. See Wolfke, K., Custom in Present International Law, 2nd. rev. ed.,
MartinusNijhoff Publishers, Dordrecht, 1993, 141.
28
Decisions of the ICJ are of decisive importance as evidence of customary rules. Even decisions
of national courts can help develop certain area of international law. Similar decisions of national
courts from a substantial number of States may be an evidence of international custom
29
The term ‘legislation’ is here employed in a comprehensive sense: it embraces the constitutions
of States, the enactments of their legislative organs, and the regulations and declarations
promulgated by executive and administrative bodies. Obviously they serve as an important store-
house of evidence of State practice
30
The diplomatic correspondence between Governments must supply abundant evidence of
customary international law . See Yearbook of the ILC, 1950, vol.2, 371.
Evidence of customary law may also be found in the writings of international
lawyers,and in judgments of national and international tribunals, which are
mentioned assubsidiary means for the determination of rules of law in Article
38(1)(d) of theStatute of the International Court of Justice.

Generality of practice

Article 38(1)(b) talks about the ‘general practice accepted as law’.31

Therefore,generality of practice is a requisite in the formation of customary law. In
order for a‘general custom’ (a rule of general customary international law) to
develop (as
opposed to a ‘local custom’ binding only a few States), the practice must be fairly
general. The element of ‘general practice’ refers to the number of States which
haveto contribute, actively or passively, towards the customary rule. The term
‘general’would indicate that common and widespread practice among a significant
number ofStates is required. While universal practice is not necessary, practice
should be“representative”, at least of all major political and socio-economic
systems. Again, thedegree of generality required will vary with the subject matter,
so that an onerouscustomary law obligation may require a more general practice.
Two implications of the generality of practice may be noted. First, the requirement
ofgeneral practice (together with opiniojuris) appears to be an essential
prerequisite fora ‘general customary rule’, which is to be binding ergaomnes. The

31
‘General practice’ as mentioned in Article 38(1)(b) stands in contrast to Article 38(1)(a) which
specks of “conventions….recognised by the contesting States”. In the Fisheries case, the Court
statedthat: “Although the ten-mile rule has been adopted by certain States both in their national
law and intheir treaties and conventions, and although certain arbitral decisions have applied it as
between theseStates, other States have adopted a different limit. Consequently, the ten-mile rule
has not acquired theauthority of a general rule of law”. Anglo-Norwegian Fisheries case (UK v
Norway) (1951) ICJ Rep.131
InternationalCourt of Justice made this point quite clear in the North Sea
Continental Shelf cases:“Customary law rules and obligations,by their very nature,
must have equal forcefor all members of the international community.” 32 Secondly,
generality of practiceboth entails and ensures that only one general customary
norm emerges on one issue,The available practice on the matter will have to be so
widespread that any remaininginconsistent practice will be marginal and without
direct legal effect. If State practiceis substantially divided and conforms to two or
more differing solutions on one issue,it is not sufficiently widespread and cannot
amount to a general customary rule; ofcourse, a number of local, regional, or
special customs may arise, each regulating thesame question in a different manner
for different groups of States.The concept of the generality of practice is subject to
important qualifications inherentin the nature of customary law.
(a) The practice of ‘specially affected’ States
In assessing whether a customary rule has come into existence, State practice
mustinclude the practice of those States whose interests are ‘specially affected’ by
thesubject matter of the rule.33 For example, the practice of major maritime powers
willhave more significance in the formation of rules on the law of the sea than,
forexample, that of a landlocked State. It is not that some States are necessarily
more‘important’ or more powerful than others; it is rather that some States will be
directlyaffected by certain rules and thus their practice is more significant.
(b) The effect of acquiescence in the formation of international custom
At a time when a particular practice is developing that may crystallize into a rule
ofcustomary international law, a State may react in three possible ways: (i) by
doingnothing (that is, complete silence or acquiescence); (ii) by objecting to the

North Sea Continental Shelf cases, (1969) ICJ Rep. 38, para 63.
32

33
North Sea Continental Shelf cases, (1969) ICJ Rep., 3, at para 73: “…a very widespread and
representative participation in the (1958 Continental Shelf) Convention might suffice of itself,
providedit included that of States whose interests were specially affected”, and para. 74.
practicefrom the outset (that is, the persistent objector); or (iii) by objecting at a
later datewhen the rule has already established as a custom (that is, the subsequent
objector).
It would seem that where there has been a widespread and consistent State
practice,then silence by others may be interpreted as ‘acquiescence’ in the
development of arule of customary international law. In such a case acceptance of
the rule isestablished by ‘acquiescence’, It is argued that the effect of the wording
of Article38(1)(b) is to create a presumption that all States whether or not they
haveparticipated in the practice are presumed to have assented to the rule unless
they candemonstrate that they have the status of a persistent objector. 34 Therefore,
it is not surprising that once a rule of general customary international law has
beenestablished, the rule is binding upon the international community as a whole 35,
that is,all States (with the exception of a persistent objector State).
(c) The practice of dissenting States
Not all active practice will adhere to a customary rule. States may wish to dissent
from such rule. They can do so expressly in their statements or votes 36 or by means
ofprotests,37 or impliedly (in the case of positive conduct) by abstaining from
practice oradhering to a different practice. Reservations to a treaty may also
represent dissent.
The Persistent objector

34
O’Brien, John, International Law, Cavendish Publishing Ltd., London, 2001, 76.
35
Harris, D.J., Cases and Materials on International Law, 5th.ed., 1998, 25, n. 1.
36
They played an important part in the Texaco v Libya Arbitration, (1979) 53 ILR 486.
37
MacGibbon, “Some Observations on the Part of Protest in International Law”, (1953) BYIL
310.
As a general rule38, no international obligation may be placed on a State without
thatState’s consent39; this is inherent in the notion of sovereignty. Again, a
distinctivefeature of customary international law is that since a State practice does
not need toreceive universal acceptance to be considered a rule of customary law, a
State isunable by its own objection to prevent a customary law from coming into
existence.A State, nevertheless, may contract out of a custom in the process of
formation. Whena State object to a particular practice carried on by other States or
adopts a contrarypractice, it may not be bound by any evolving customary law.
This is known as theconcept of ‘persistent objector’. 40 A persistently objecting
State is not bound by theeventual customary rule if the State fulfills two
conditions. First, the objections musthave been maintained from the early stages of
the rule onwards, up to its formation,and beyond. Secondly, the objections must be
maintained consistently.41Evidence ofobjection must be clear and there is probably
a presumption of acceptance, which is tobe rebutted. Whatever the theoretical
underpinnings of the principle42, the concept appears to have been accepted by
38
The only exception is the concept of ‘juscogens’. That is why it has been argued that a
persistentobjector cannot escape being bound by a new rule of customary international law that
has the characterof jus cogens. See, e.g., Henkin, Louis, International Law: Politics and Values,
1995, 39.
39
This is based on the ‘consensual theory’ of international law. In its pure form, this
consensualtheory or positivist theory stipulates that no international law can be created without
the consent of theState, which is to be bound. This theory recognizes that a State’s consent may
be given in a variety ofways – express in treaties or implied in custom – but essentially the
system of international law is basedon voluntary self-restriction.
40
Colson, David, “How Persistent Must the Persistent Objector Be?” (1986) 61 Washington L.
Rev.957; Stein, T.L., “The Approach of the Different Drummer: The Principle of the Persistent
Objector inInternational Law”, (1985) Harvard JIL, vol. 26, No. 2, 457-482.
41
Villiger, Customary International Law and Treaties, MartinusNijhoff Publishers,
Dordrecht,1985, 14.
42
Charney is of the view that the persistent objector rule has no legitimate basis in international
legal system; see Charney, J., “The persistent Objector Rule and the Development of
Customaryinternational Law”, (1985) 56 BYIL 1. Charney argues: “The rule has attracted the
interest of writerseven though it is rarely invoked in practice. For the latter reason, among others,
the rule is open toserious doubt….The International Court has referred to the persistent objector
rule in two judgments(Fisheries case and Asylum case), but only as dicta, and decided the cases
overwhelming majority of writers43 and in thepractice of States.44 The authority
that writers primarily rely upon to support this ruleis the Anglo-Norwegian
Fisheries case45. In that case, the International Court ofJustice made a finding that a
coastline delimitation rule put forward by the UnitedKingdom would appear to be
inapplicable as against Norway, inasmuch as she hasalways opposed any attempt
to apply it to the Norwegian coast.Can a disagreeing State ultimately and
indefinitely remain outside of new lawaccepted by the large majority of States? In
practice, it is highly unlikely that thepersistent objector can remain outside the
scope of a new customary rule for verylong. The pressure to conform to the new
rule, as well as the disadvantages of beingoutside the legal regime, ensure that the
objecting State cannot maintain a positioncontrary to the overwhelming practice of
other States.46
The subsequent objector
What is the effect of dissent by a State after a custom has been established?
Thegeneral rule is that subsequent objection to an established rule of customary
lawcannot prevent that rule binding the State. A related question is what if the
objectingState was not in existence at the time that the custom came into being?
The orthodoxrule is that ‘new States’ are automatically bound by generally

on other grounds. ThusState practice and other evidence do not support the existence of the
persistent objector rule”; seeCharney, J., “Universal International Law”, (1993) 87 AJIL 529, at
538-39.
43
Brownlie, Principles of Public International Law, 5th.ed., 1998, 10; Ahehurst’s Modern
Introduction to International Law, 7th.ed., 1997, 48; Henkin, Louis, ‘International Law: Politics,
Values and Functions” 216 Hague Recueil, 9, 45, 46, 130; Fitzmaurice, 92 Hague Recueil
(1957,II),99-100; Waldock, 106 Hague Recueil (1962,II), 49-50; Jimenez de Arechaga, 159
Hague Recueil(1978, I) 30.
44
On the question of the persistent objector, Restatement of the Foreign Relations Law of the US
reads: “…in principle a State that indicates its dissent from a practice while the law is still in the
process of development is not bound by that rule even after it matures….” Restatement Third
(1987) vol.I, para 102, comment, 26.
45
Anglo-Norwegian Fisheries case (UK v Norway) (1951) ICJ Rep. 3.
46
This was true, for example, in respect of the UK’s objection the extension of the territorial
seafrom 3 to 12 miles, a position now adopted in the UK’s Territorial Sea Act 1987.
accepted internationallaw. In fact the problem of the relation of new States to
existing international law isprimarily a matter belonging to the area of State
succession. As far as customary lawis concerned, the prevailing view is, with
different reasoning, that new States cannotin principle escape existing customary
obligations. One cannot select rights grantedby a legal system and at the same time
reject the duties one dislikes.47We have to admit that subsequent objection may,
over time, have a significant impacton the substance of customary international
law. It may even lead to a change in acustomary regime. Subsequent objections or
derivations may become so widespreadthat the previous rule is destroyed and
replaced by a new rule, as with the extension ofthe territorial sea from 3 to 12
miles.
(d) Local or regional custom
In the famous Asylum case between Columbia and Peru, the World Court held
that:
The Colombian Government…has relied on an alleged regional or
local custom peculiar to Latin-American States.
The Party which relies on a custom of this kind must prove that this
custom has established in such a manner that it has become binding
on the other Party. The Columbia government must prove that the
rule invoked by it is in accordance with a constant and uniform
usage practiced by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum and a
duty incumbent on the territorial State. This follows from Article 38
of the Statute of the Court, which refers to international custom as

47
The reservations of the decolonised new States towards the international legal order created by
theold colonial powers have had a considerable impact in particular areas, such as international
economiclaw and the law of the sea, which has led to legal uncertainty. See Akehurst’s Modern
Introduction toInternational Law, 7th.ed., 1997, 47.
 “evidence of a general practice accepted as law”….
As the Court recognized in this case, although Article 38(1) (b) refers to “a
general”practice, it allows for local (or regional) customs amongst a group of
States or justtwo States48 in their relations inter se as well as for general customs
binding upon theinternational community as a whole. Local customs may
supplement or derogatefrom general customary international law (subject to such
rules of jus cogensas mayexist).49 Moreover, from the wording of the judgment, it
is clear that in the case of alocal custom (as opposed to general custom), the party
which relies on the custommust prove that such custom is binding upon the other
party.50

Consistency of practice
One of the most important factors in the formation of customary law is that the
Statepractice must be reasonably consistent. This criterion is satisfied if there is
substantial,rather than total or complete, consistency. The International Court of
Justice held inthe Nicaragua case that:
The Court does not consider that, for a rule to be established as
customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the existence
of customary rules, the Court deems it sufficient that the conduct of
States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should

48
Such a custom (Portugal’s right of transit over Indian territory) was found to exist between
Indiaand Portugal in the Right of Passage over Indian Territory case, (1960) ICJ Rep. 6.
49
Harris, D.J., Cases and Materials on International Law, 5th.ed., 1998, 25.
50
Professor D’Amato strongly argues that this requirement is meant only for local, regional or
special custom (his terminology for a local custom) and not meant for a rule of general
customary law.He quoted three World Court decisions all of which deal with local customs only,
namely the Asylumcase, Right of Passage case, and Fisheries case. See D’Amato, Anthony, “The
Concept of SpecialCustom in International Law”, (1969) 63 AJIL 211.
 generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule….51
Therefore, major inconsistencies in the practice (that is, a large amount of
practicewhich goes against the ‘rule’ in question) prevent the creation of a
customary rule.
As stated by the ICJ in the Fisheries case, minor inconsistencies (that is, a
smallamount of practice which goes against the rule in question) do not prevent the
creation of a customary rule52, although in such cases the rule in
questionprobablyneeds to be supported by a large amount of practice, in order to
outweigh theconflicting practice in question.53

Duration of practice

Provided the generality and consistency of a practice are proved, no

particularduration is required: the passage of time will of course be a part of the
evidence ofgenerality and consistency. A long (and, much less, an immemorial)
practice is notnecessary, and rules relating to airspace and the continental shelf
have emerged fromfairly quick maturing of practice. The International Court does
not emphasize the timeelement as such in its practice. In the North Sea Continental
Shelf cases, the Courtsuggests that “the length of time needed will vary from
subject to subject and that thepassage of only a brief period of time is not
necessarily a bar to the formation ofcustomary law”.54
The issue of instant customary law (dirittospontaneo)

51
Military and Paramilitary Activities in and against Nicaragua (US v Nicaragua)(Merits),
(1986)ICJ Rep. 14, at para 186.
52
Anglo-Norwegian Fisheries case, (1951) ICJ Rep. 116, at 138.
53
See Akehurst, M., “Custom as a Source of International Law” (1974-75) 47 BYIL 53
54
North Sea Continental Shelf cases, (1969) ICJ Rep., 3.
An interesting issue involved in this ‘time element’ is the existence or non-
existenceof the category of ‘instant customary international law’, which has been
brought to theforefront by some writers like Roberto Ago and Bin Cheng 55. The
result is to deny thesignificance of State practice in the formation of customary
international law and torely solely on opiniojuris as the constitutive element of
custom.In view of the nature of the decentralized international legal system and
theelementary role of State practice as the objective element in the formation
ofcustomary law, opiniojuris on its own does not suffice to establish general
custom incontroversial areas. This view is confirmed by the jurisprudence of the
InternationalCourt of Justice. In the North Sea Continental Shelf cases, the Court
insisted that “anindispensable requirement would be that within the period in
question, short though itmight be, State practice, including that of States whose
interests are specially affected,should have been both extensive and uniform” 56. An
even clearer rejection of thedoctrine of ‘instant custom’ can be found in the
following words of the Court in theNicaragua case:
The mere fact that States declare their recognition of certain rules is
not sufficient for the Court to consider these as being part of
customary international law…. Bound as it is by Article 38 of its
Statute…the Court must satisfy itself that the existence of the rule in
theopiniojuris of State is confirmed by practice.57

Opiniojurissive necessitates

55
Cheng, Bin, “United Nations Resolutions on Outer space: Instance International customary
law?”,(1965) Indian JIL, 23.
56
North Sea Continental Shelf cases, (1969) ICJ Rep., 3, at 43.
57
Military and Paramilitary Activities in and against Nicaragua (Merits), (1986) ICJ Rep., at 97.
Article 38(1)(b) refers to ‘international custom, as evidence of a general
practiceaccepted as law’. Therefore, the second element of an international custom
is that thepractice must be ‘accepted’ by States as ‘law’. When inferring rules of
customary lawfrom State practice, it is necessary to examine not only what States
do but also whythey do it. In other words, there is a psychological element in the
formation ofcustomary law. State practice alone is not sufficient; it must be shown
that it isaccompanied by a conviction that it is binding upon them as law. This
conviction byStates in the obligatory nature of the practice is known as
opiniojurissivenecessitates (in short- opiniojuris).
The requirement of opiniojuris
In the Lotus case58, the PCIJ emphasized that opiniojuris was an essential element
inthe formation of customary international law. This was reaffirmed in the North
SeaContinental Shelf cases59 and has been accepted ever since. It is not surprising
giventhat there must be some criteria by which we can distinguish State practice
amountingto law from other kinds of State activity, such as acts of comity or
courtesy orfriendship. In other words, opiniojuris is an essential criterion for
distinguishingbetween law and non-law.60
Proof of opiniojuris
Now that the requirement of opiniojuris is established, the important problem
thatremains is surely one of how to prove it. Professor Brownlie is of the view that
interms of the practice of the International Court of Justice, there are two methods
ofapproach regarding the proof of opiniojuris. According to him, “In many cases

58
Lotus case, (1927) PCIJ Series A, No. 10.
59
North Sea Continental Shelf cases, (1969) ICJ Rep. 3.
60
Kopelmanas took a position against the necessity of opiniojuris, and Guggenheim argued that
thecondition of opiniojuris was superfluous. But this theory is untenable; it would eliminate the
distinction between rules of customary law, on the one hand, and rules of international morality
andcomity, on the other. See Kunz, J.L., “The Nature of Customary International Law”, (1953)
47 AJIL,662-669.
theCourt is willing to assume the existence of an opiniojuris on the basis of
evidence ofa general practice, or a consensus in the literature, or the previous
eterminations ofthe Court or other international tribunals. However, in the
significant minority ofcases (the Lotus case, North Sea Continental Shelf cases and
Nicaragua case) theCourt has adopted a more rigorous approach and has called for
more positive evidenceof the recognition of the validity of the rules in question in
the practice of States. Thechoice of approach appears to depend upon the nature of
the issue, and the discretionof the court. 61
Nevertheless, the present study respectfully submits the following:
(1) It is true that in many cases the Court was willing to assume opiniojuris
becausethese cases were clear-cut cases where there were no sharp
differences of opinions asto the existence of a rule of customary law. If the
Court has to assume opiniojuris inall cases from the existence of a general
practice, then it would amount to totallyabolishing the requirement of
opiniojuris and determining the existence of acustomary rule entirely on the
basis of general and consistent State practice.
(2) The judgment of the Court in the North Sea Continental Shelf cases is
actually rather explicit and flexible on the matter except on one point where
the Court stated that “There is no evidence that (the States) so acted because
they felt legally compelled to draw (the boundary lines) in this way by
reason of a rule of customary law – especially considering that they might
have been motivated by other obvious factors.” 62 The rigidity of this dictum
has to be seen in the context of the practice of non-parties upon a
conventional rule, which, in the Court’s analysis, had not been customary
upon adoption of the 1958 Convention.

61
Brownlie, Principles of Public International Law, 5th.ed., 1998, 7.
62
North Sea Continental Shelf cases, (1969) IC J Rep. 3, para. 78.
 (3) The task of ascertaining opiniojuris, although difficult, is feasible.63 The
opiniojuris simply can be proved by an express, or most often tacit,
acceptance of the practice as law by the interested States. The express
declaration of a State that agiven rule is obligatory (or customary) furnishes
the clearest evidence as to theState’s legal conviction. Express acceptance
is, however, rather rare and not typicalfor the process of custom-formation.64
(4) In most cases, the element of acceptance as law is fulfilled tacitly, only by
meansof a presumption based upon various kinds of active or passive
reactions to thepractice by the interested States. In the Nicaragua case, the
Court indicates somevaluable guidelines on how to ascertain opiniojuris:

…[A]s was observed in the North Sea Continental Shelf cases, for 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 opiniojurissive
necessitatis. Either the States taking such action or other States in a
position to react to it, must have behaved so that their conduct is
‘evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e., the
existence of a subjective element, is implicit in the very notion of opinio
jurissivenecessitatis’.65
The Court points out that what is important in ascertaining opiniojuris is
the‘behavior’ not only of the States taking a particular action but also of other
States ina position to react to it. It is a clear guideline that opiniojuris can be

63
See, Villiger, M.E., Customary International Law and Treaties, MartinusNijhoff Publishers,
Dordrecht, 1985, 27.
64
Wolfke, Karol, Custom in Present International Law, 2nd. revised ed., MartinusNijhoff
Publishers, Dorsrecht,1993, 47.
65
Nicaragua case, (1986) ICJ Rep., 14.para. 207.
inferred fromthe actual behavior of States;66 it can be gathered from acts or
omissions of States.67If conduct by some States provokes ‘protests’ from other
States that such conduct isillegal, the protests can deprive such conduct of any
value as evidence of customarylaw.68
(5) “Protest”69 plays a very important role in ascertaining the element of
‘acceptance as law’. Absence of protests or objections against a practice
(that is, acquiescence) tends to prove that States do not consider the practice
as contrary to their interests and also, that they do not object to the
formation of a customary rule.70 ‘Toleration’of a practice by other States,
considering all relevant circumstances, justifies the presumption of its
acceptance as law.71
(6) Casting an affirmative vote to a resolution of an international organization
or ratifying an international convention is also a clear commitment in the
nature of opiniojuris on the part of a particular State. The Court states in the
Nicaragua case:
As regards the United States in particular, the weight of an

66
The World Court itself indicated in both North Sea Continental Shelf cases and the Nicaragua
case that there is a close affinity between the two elements of State practice and opiniojuris. That
is why opiniojuris is to be inferred from the actual behaviour of States themselves.
67
Restatement of Foreign Relations Law of the US, (Third), vol. 1, para. 101.
68
Karl, W., “Protest”, (1986) 9 EPIL 320-22.
69
Professor MacGibbon defines ‘protest’ in international law as follows: “A protest constitutes a
formal objection by which the protesting State makes it known that it does not recognise the
legality ofthe acts against which the protest is directed, that it does not acquiesce in the situation
which such actscreated and that it has no intention of abandoning its own rights in the premises.”
MacGibbon, I.C.,“Some Observations on the Part of Protest in International Law”, (1953) BYIL
293-319, at 298.
70
See MacGibbon, “Customary International Law and Acquiescence”, (1957) BYIL 115-145.
Seealso Akehurst’ Modern Introduction to International Law, 1997, 44, where the learned
professor makesa distinction between a permissive rule and a rule imposing duties.
71
Governments know that toleration of practice leads to its being legalised, to the formation of a
new customary rule.International events are watched,and everysituation undesirable for a State
provokes an immediate reaction for fear of the consequences for thatState of its being said to
have acquiesced in a precedent leading to custom.
 expression of opiniojuris can similarly be attached to its support of
the resolution of the Sixth International Conference of American
States condemning aggression … and ratification of the Montevideo
Convention on Rights and Duties of States…72

Proof of custom
In principle, a court is presumed to know the law and may apply a custom even if
ithas not been expressly pleaded. In practice, however, the proponent of a custom
has aburden of proof the nature of which will vary according to the subject matter.
Forinstance, in the Lotus case73, the World Court acknowledged the plaintiff’s
burden inrespect of a general custom. In a case where a local or regional custom is
alleged, theproponent ‘must prove that this custom is established in such a manner
that it hasbecome binding on the other party’.74

GENERAL PRINCIPLES OF LAW

The third source of international law listed in the Statute of the Court is ‘the
generalprinciples of law’. Most modern jurists accept that ‘general principles of
law’ areprinciples of law common to all national legal systems, in so far as they are
applicableto relations of States.75 The main objective of inserting this paragraph in
Article 38 is to fill in gaps in treaty law and customary law and is necessary to

72
Ibid.,para. 189.
73
Lotus case, (1927) PCIJ Series A, No. 10, 18.
74
Asylum case, (1950) ICJ Rep. 276.
75
Akehurst’s Modern Introduction to International Law, 1997, 49; Dixon, Martin, Textbook on
International Law, 4th.ed., Blackstone Press Ltd., London, 2000, 39; Cassese, Anthonio,
InternationalLaw, Oxford University Press, 2001, 156.
meet the possibilityof a non liquet.76Such general principles would include the duty
to provide ‘reparation’ in consequenceof a wrongful act (Chorzow Factory case 77),
which is accepted in most legal systems.Some of the general principles are based
on ‘natural justice’ common to all legalsystems such as the principles of good
faith78, estoppel or acquiescence79, androportionalality. Some are based on legal
logic or statutory interpretation such as theprinciples of lex posterior derogatlegi
priori, lexspecialisdegoratlegigenerali, and contraproferentem.Perhaps the most
frequent and successful use of domestic law analogies has been inthe field of
evidence, procedure and jurisdictional questions. Thus there have beenreferences
to such rules as nemojudex in causasua (no man shall be judge in his owncause) 80,
litispendence81, and res judicata82. In the Corfu Channel case83, the Courthad
recourse to ‘circumstantial evidence’ and remarked that ‘this indirect evidence
isadmitted in all legal systems, and its use is recognized by international
decisions’.
Even some substantive law principles, though very rarely, can be found in
thedecisions of the Court. In the Barcelona Traction case (Second Phase) 84, for
example,the Court has acknowledged the concept of the ‘limited liability company’
to be foundin domestic law systems.In any case, we have to admit that the Court
76
Non liquet means the possibility that a court or tribunal could not decide a case because of a
‘gap’in law. Remarkably, the ICJ applied the doctrine of non liquet in the Nuclear Weapons case,
AdvisoryOpinion, (1997) 35 ILM 809 and 1343.
77
Chorzow Factory case, (1928) PCIJ Series A, No. 17.
78
Nuclear Test case (Australia v France), Judgment of 20 December 1974, ICJ Rep. 1974, 268,
para, 46; See also D’ Amato, A., “Good Faith”, (1995) EPIL 11, 599-601
79
See the Eastern Greenland case, (1933) PCIJ Series A/B, No. 53, pp. 52, 62, 69; Arbitral
Awardof the King of Spain, (1960) IC J Rep. 192, at 209, 213; The Temple of PreahVihear case,
(1962) IC JRep., at 23, 31, 32.
80
Mosul Boundary case, (1925) PCIJ Series B, No. 12, p. 32.
81
German Interests in Polish Upper Silesia, (1925) PCIJ Series A, No. 6, p. 20.
82
Effect of Awards of the UN Administrative Tribunal, (1954) ICJ Rep. 53.
83
Corfu Channel case, (1949) ICJ Rep. 18. See also Right of Passage over Indian Territory
(Prelim.Objection), (1957) ICJ Rep., 141-142.
84
Barcelona Traction case, (1970) ICJ Rep. at 33-35.
seldom resorted to general principles oflaw. Could we say that the use of the
General principles would wither away? In fact ithas not fallen into desuetude. It
has remained dormant for a long time. As soon as ithas appeared that new areas of
international law contained conspicuous gaps, the useof the general principles has
been revitalized. It applies in particular to internationalcriminal law, a body of law
that is still rudimentary and replete with lacunae. In thisarea the ad hoc
International Criminal Tribunals (the ICTY and the ICTR) havefrequently resorted
to general principles of criminal law recognized in the principallegal systems of the
world – common law systems and civil law systems. Moreover,Article 21 of the
Rome Statute establishing the International Criminal Court (ICC)envisages the
possibility that the Court might resort to such a subsidiary source.However, as
noted by Judge McNair in the South-West Africa case 85, the environmentin which
international law operates is very different from the one in which domesticlaw
operates, and principles of domestic law can be used to fill gaps in internationallaw
only if they are suited to the international environment.

JUDICIAL DECISIONS AND WRITINGS OF JURISTS

Article 38(1)(d) of the Statute of the International Court of Justice directs the Court
toapply judicial decisions and the teachings of the most highly qualified publicists
of thevarious nations, as subsidiary means for the determination of rules of law”.

Judicial decisions

85
South-West Africa case, (1950) ICJ Rep. 148.
Article 59 of the Statute says that “the decisions of the Court has no binding
forceexcept between the parties and in respect of that particular case”. It means
that ininternational law there is no concept of stare decisis, as known in common
lawsystems.86In theory, therefore, judicial decisions do not make law but are
declaratoryof pre-existing law. They are law identifying or material sources of law,
and we havealready seen that they can be evidence of customary international
law.Although international courts are, in principle, not obliged to follow
previousdecisions, in practice they almost always take previous decisions into
account.87Sofar as the International Court of Justice is concerned, the Court always
strives tomaintain ‘judicial consistency’, referring to previous decisions. For
example, in the
Interpretation of Peace Treaties case88, the Court felt obliged to distinguish
theearlierdecision of the PCIJ in the Eastern Carelia case 89, when, if one were to
interpretArticle 59 strictly, this was not at all necessary.
Whatever the theory, the Court in practice is involved in the process of law-
creation.First, the Court will decide the substance of a dispute submitted to it and
the decisionof the Court has created law for the parties. Secondly, and of more
significance, adecision of the Court may have a profound impact on customary
law. It is often thecase that the Court will bring the process of crystallization of
customary law to a swiftconclusion. It may accelerate the creation of customary
law by confirming trends inState practice and by ‘discovering’ necessary
opiniojuris.90 Likewise, the Court mayconfirm that a principle first inserted in a

86
See Waldock, 106 Hague Recueil (1962, II), 91. See also German Interests in Polish Upper
Silesia case, (1926) PCIJ, Series A, No. 7, p. 19.
87
Shahabuddeen, Mohd., Precedent in the World Court, 1996.
88
Interpretation of Peace Treaties case, (1950) ICJ Rep. 65.
89
Eastern Carelia case, (1923) PCIJ Series B, No. 5.
90
This seems to have happened in the angl0-Norwegian Fisheries case, and more recently, in
Tunisia v Libya in respect of the Exclusive Economic Zone.
treaty has now attained the status of generalcustomary law. 91 It is also obvious that
a unanimous, or almost unanimous, decisionhas a role in the progressive
development of the law. For example, the decisions andadvisory opinions in the
Reparation92, Genocide93, Fisheries94, and Nottebohm95 caseshave had decisive
influence on general international law.
Since Article 38(1)(d) is not limited to decisions of the World Court, there is
noreason why decisions of other judicial bodies should not be regarded as sources
of international law. Even decisions of domestic courts, if they deal with matters
ofinternational law, may provide important evidence as to the practice of
States,particularly in fields such as State immunity, extradition, international
personality andhuman rights. The Pinochet case96 is a good example.

Writings of publicists

The writings of the most highly qualified publicists are also to be regarded as
a‘subsidiary means for the determination of rules of law’, although it is clear that
theyare a material or evidential source only. Today, the writings of even the
mostrespected international lawyers cannot create law. While international
arbitraltribunals frequently cite textbooks and authors, the International Court of
Justicerefrains from doing so in its decisions.97

91
See, for example, Territorial Dispute case (Libya v Chad) (1994) ICJ Rep. 6, with respect to
Article 31 of the Vienna Convention on the Law of Treaties, 1969.
92
Reparations for Injuries Suffered in the Service of the United Nations case, (1949) ICJ Rep.
174 .
93
Reservations to the Genocide Convention case, (1951) ICJ Rep. 15.
94
Anglo-Norwegian Fisheries case, (1951) ICJ Rep., 116.
95
Nottebohn case, (1955) ICJ Rep. 4.
96
Pinochet case – R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3),
[1999] 3 All ER 97.
97
See Rosenne, The Law and Practice of the International Court of Justice, 2nd.ed., 1985, 614-
16.
OTHER POSSIBLE SOURCES

Having examined the sources mentioned in the Statute of the Court, our concern
nowis to consider whether there are any other possible sources, which have been
omittedin the list.

General Assembly Resolutions

There have been suggestions that the resolutions of the United Nations General
Assembly should be recognized as a source of international law. As a rule, General
Assembly resolutions are not binding on member states; in fact most resolutions
havenothing to do with international law. Nevertheless, when they are concerned
withgeneral norms of international law, they may provide a basis for
progressivedevelopment of the law and the speedy consolidation of customary
rules.98
As Sloan suggests, General Assembly resolutions may also contribute to custom
moredirectly in a form of “collective State practice”. 99They are the collective
equivalentof unilateral general statements or, in the context of a particular dispute,
‘150diplomatic protests’. The process by which they are adopted (“adopted
unanimously,or near unanimously, or by a true consensus’ or otherwise)
establishes whether thepractice is a “general’ one. Their repetition in later
resolutions goes to the ‘constancy’and ‘uniformity’ of the practice. As to the
98
Examples of ‘law-making resolutions’ are the Resolution which affirmed the Principles of
International Law recognised by the Charter of the Nuremberg Tribunal and the Judgment of the
Tribunal (Res. No. 95, 11 Dec. 1946, adopted unanimously); the Declaration on Granting of
Independence to Colonial Countries and Peoples (Res. No. 1514, 14 Dec. 1960, adopted by 89
votes tonone, with 9 abstentions); and the Declaration on Permanent Sovereignty over Natural
Resources, (Res.No. 1803. 14 Dec. 1962, adopted by 87 votes to 2, 12 abstentions).
99
Sloan, “General Assembly Resolutions Revisited”, (1987) 58 BYIL 39. For a different view,
seeMacGibbon, in Cheng, ed., International Law: Teaching and Practice, 1982, 59.
requirement of opiniojuris, this will beevidenced, as Sloan indicates, by the
wording of the resolution; by statements made inthe General Assembly in debate
prior to its adoption or later in explanation of a vote;or by statements made
elsewhere. International courts and tribunals have not doubted that General
Assembly resolutionsare State practice and hence evidence of custom. Moreover,
they have tended to giveconsiderable weight to them as such. We should note the
use of the Court of theGeneral Assembly resolutions on self-determination in the
Western Sahara case100,and the reliance by various arbitral tribunals on the GA
Resolution 1803 (PermanentSovereignty over Natural Resources) on the rules on
expropriation.101 Most strikingly,the judgment of the World Court in the Nicaragua
case102 relies almost exclusivelyupon General Assembly resolutions103 when stating
the law on the use of force andintervention. In the Legality of the Threat and Use
of Nuclear Weapons case104, theCourt stated that:

The General Assembly resolutions, even if they are not binding,

may sometimes have normative value. They can …provide evidence
important for the emergence of an opiniojuris…. a series of
resolutions may show the gradual evolution of the opiniojuris
required for the establishment of a customary rule.

100
Western Sahara case, (1975) ICJ Rep. 12.
101
See, for example, The Texaco case (1977) 53 ILR 389; The Aminoil case, (1982) 21 ILM 976.
102
Nicaragua case (Merits), 1986 IC J Rep. 14.
103
Especially General Assembly Resolution 2625(XXV) of October 24, 1970 which is entitled
“Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations”. The Resolution was
adopted bythe General Assembly without a vote (that is, by consensus).
104
Legality of the Threat and Use of Nuclear Weapons case, Advisory Opinion, (1996) ICJ Rep.
66.
Soft Law
In recent years a new idea has crystallized in the international community, which
has come to be known as ‘soft law’105 (as opposed to ‘hard law’, which makes
upinternational law proper). ‘Soft law’ can be defined as a body of guiding
principles,standards, rules of conduct, or declarations of policy, which are not
strictly bindingnorms of law.106 Some argue that this is not law at all but another
name for principlesde legeferenda, or principles which could become normative in
the future.107 Somesay that there exists a considerable “grey area” of “soft law”
between the white spaceof “law” and the black territory of “non-law”.108
Soft law can be found, for example, in treaties not yet in force, in resolutions
ordeclarations of international organizations, or in final acts of
internationalconferences. It chiefly relates to human rights, international economic
relations, andprotection of the environment. Some examples of soft law
instruments are the
Helsinki Final Act 1975, the Bonn Declaration on International Terrorism 1978,
andthe Rio Declaration on the Environment and Development 1992.
These soft law instruments have, according to Professor Antonio Cassese, three
majorfeatures in common. First, they are indicative of the modern trends emerging
in theworld community. Secondly, they deal with matters that reflect new concerns
of theinternational community, to which previously this community was not
sensitive or notsufficiently alert. Third, for political, economic, or other reasons, it
105
The concept of soft law has, however, been criticised by some writers: “The term is
inadequateand misleading. There are no two levels or ‘species’ of law – something is law or not
law:” Criticism ofSztucki, cited in Harris, D.J., Cases and Materials on International Law,
5th.ed., 1998, 65.
106
On soft law generally, See Chinkin, “The Challenge of Soft Law: Development and Change
inInternational Law”, (1989) 38 ICLQ 859; Weil, “Towards Relative Normativity in
International Law”, (1983) 77 AJIL 413.
107
Dixon, Martin, Textbook on International Law, 2000, 48.
108
Van Hoof, Rethinking the Sources of International Law, 1983, 187-89.
is, however, hardfor States to reach full convergence of views and standards on
these matters so as toagree upon legally binding commitments.109
While it may be paradoxical to call something “law” when it is not law, the
concept isnonetheless useful to describe instruments that clearly have an impact on
internationalrelations and that may later harden into custom 110 or become the basis
of a treaty.111

Equity

Equity is used here in the sense of considerations of ‘fairness’, and

‘reasonableness’.It is the application of rules of international law with due regard
to what is fair andreasonable.In the Diversion of Water from the Meuse case 112, the
Netherlands claimed thatBelgium had violated a treaty by building canals that
changed the flow of water in theRiver Meuse. One of the issues was whether the
Netherlands had lost the right tobring the claim because of similar earlier conduct
sby itself (estoppel). In thisconnection, the individual opinion of Judge Hudson
recognized the principle of‘equity’ as part of international law. He noticed that
there was no express authority inthe Statute of the PCIJ to apply equity as
distinguished from law. But he pointed toArticle 38(1)(c) of the Statute which
allowed the application of ‘general principles oflaw’ and argued that principles of
equity are common to all national legal systems.References to ‘equity’ can be
found very often in the judgments of the World Court.Examples include the River
109
Cassese, Antonio, International Law, Oxford University Press, 2001, 160-1.
110
For instance, the University Declaration of Human Rights 1948 was “soft Law” when it was
adopted but has since to some extent hardened into custom. See Filartiga v Pena-Irala, 630 F.2d
876(1980).
111
For instance, the United Nations Declaration on Torture 1975, GA Resolution 3452, formed
thebasis for the later adoption of the Convention Against Torture and Other Cruel, Inhuman or
DegradingTreatment or Punishment 1984.
112
Diversion of Water from the Meuse (Netherlands v Belgium), (1937) PCIJ Series A/B, No. 70.
Meuse case itself (application of equitable principle ofestoppel), the Temple of
PreahVihear case113 (application of acquiescence),Barcelona Traction case 114
(reference to “considerations of equity” when seeking toapply the law of
diplomatic protection “reasonably”), and the Frontier Dispute case(Burkina Faso v
Mali)115 (application of equity infra legem116,that is, that form ofequity which
constitutes a method of interpretation of the law in force, to
territorialdelimitation).Perhaps the most prominent use of equity as part of
international law has been in thelaw of the sea in the context of delimitation of
maritime zones. In the Fisheries Jurisdiction case 117, the Court outlined the
elements of an ‘equitable solution’ of thedifferences over fishing rights and
directed the parties to negotiate accordingly. In theNorth Sea Continental Shelf
cases118, the Court had to resort to the formulation ofequitable principles
concerning the delimitation of adjacent areas of continental shelf,as a consequence
of its opinion that no rule of customary or treaty law bound theStates parties to the
dispute. The Court has increasingly referred to “equity” in itsjudgments in recent
years. For example, in the Gulf of Maine case 119, it stated that theconcepts of
acquiescence and estoppel in international law “follow form thefundamental
principles of good faith and equity”.The conclusion then is that ‘equity’, in the
present context, is encompassed byArticle 38(1)(c) of the Statute, that is, as a
general principle of law, and not byArticle 38(2) which empowers the Court to
decide a case ex aequo et bono, if theparties agree thereto120.
113
Temple of PreahVihear case, (1962) ICJ Rep. 6.
114
Barcelona Traction case (Belgium v Spain), (1970) ICJ Rep. 3, at paras. 93-94.
115
Frontier Dispute case (Burkina Faso v Mali), (1986) ICJ Rep. 554.
116
See Akehurst, M., “Equity and General Principles of Law”, (1976) 25 ICLQ 801.
117
Fisheries Jurisdiction case (UK v Iceland), (1974) ICJ Rep. 3, at 30-5.
118
North Sea Continental Shelf cases, (1969) ICJ Rep. 3, at 46-52.
119
Gulf of Maine case, (1984) ICJ Rep. 246, at 305.
120
Article 38(2) refers to a decision by the Court where equity overrides all other rules. This is
thepower of the Court to decide a dispute at the request of the parties without any reference to
international law at all. It has never been used by the Court.
THE HIERARCHY OF THE SOURCES

There is no indication in Article 38 of the Statute of the priority or hierarchy of

thesources of international law. Apart from a single reference to ‘subsidiary
means’ in
Article 38(1)(d), we do not know the order in which the sources of law are to
beapplied. When drafting the original text of article 38, words of priority were
included:“the sources listed should be considered by the Court in the under
mentioned order(i.e., the order (a) to (d) in which they now appear)”; but
ultimately they weredeleted.121 The silence in Article 38 as to a hierarchy of
sources reflects accurately thenature of the international legal order in which a
hierarchy of sources is an alienconcept. Indeed, there is no difficulty if the rules
derived from the various sources arecomplementary. However, in cases of conflict
it is vital to determine which sourceshall prevail. The state of the law relating to
the hierarch or priority among the varioussources of international law can be
summarized as follows:

(1) Jus cogens: the highest in the hierarchy

A rule of jus cogens is a peremptory norm of general international law,

which is “anorm accepted and recognized by the international community of

Akehurst, M., “Hierarchy among the Sources of International Law”, (1974-75) 47 BYIL, 273.
121

Professor Harris refers to the oppositions at the meeting of the Advisory Committee of jurists,
namely:(1) if the expression [undermentioned order] only meant that a convention should be
considered before,for instance, customary law, it is unnecessary because it is a fundamental
principle of law that a specialrule goes before general law; (2) This expression also seems to fail
to recognise that these varioussources may be applied simultaneously. See Harris, D.J., Cases
and Materials on International Law,5th.ed., 1998, 23.
 States as a whole asa norm from which no derogation is permitted and
which can be modified only by asubsequent norm of general international
law having the same character”.122 Thetypical effect of rules of jus cogens is
that as States cannot derogate from them through treaties or customary rules
(which are not endowed with the same legalforce), the treaty or customary
rules contrary to them are null and void.123 Therefore,rules having the
character of jus cogens are the highest in the hierarchy of the sourcesof
international law.

(2) Treaty versus custom

Our concern here is the interaction between the two major sources of
internationallaw: ‘treaty and custom’. They are both necessary components
of the internationalorder. Usually, they are quite complementary. A treaty
may codify custom or maylead to the development of new customary law
through the impetus it gives to Statepractice. On the other hand, States may
abrogate a customary rule by concluding atreaty 124; the latter may again be
modified by new customary law.125 Therefore, theconclusion is that treaty
law and customary law are of equal authority and of equalstatus (with the
exception of the principle of jus cogens).Difficulties can arise, however, if
the treaty and customary law stipulate contradictoryor dissimilar obligations.
122
See Article 53 of the Vienna Convention on the Law of Treaties 1969
123
Cassese, Antonio, International Law, 2001, 143.
124
One of the main reasons why States make treaties is because they regard the relevant rules
ofcustomary law as inadequate. Thus States may derogate from customary law by concluding a
treatywith different obligations, the only limitation being rules of jus cogens. See Akehurst’s
ModernIntroduction to International Law, 1997, 56.
125
Treaties can come to an end through ‘desuetude’ –the situation in which the treaty is
consistentlyignored by one or more parties, with the acquiescence of the other party or parties.
Desuetude oftentakes the form of the emergence of a new rule of customary international law,
confliction with thetreaty. See Kontou, N., The Termination and Revision of Treaties in the Light
of New CustomaryInternational Law, 1994.
 In case of conflict, which law shall prevail? One solutioncan be found in the
principle of lex posterior derogatlegi priori (a later law repeals anearlier
law). When two rules on the same subject matter differ in their contents,
therule originating later in time shall prevail.126 However, There are some
difficulties inthe application of this principle: (1) The principle raises the
problem of determiningthe precise moment of the formation of a customary
rule; (2) a new particularcustomary or conventional rule may arise leaving
the general one unchanged for theremaining members of the international
community or the parties to the multilateraltreaty; and (3) in the case of
codification of a customary rule, there is no ground forautomatic abrogation
of an old, well-settled general rule in so far as it does notcontradict the
codified one.127In deciding possible conflicts between treaty law and
customary law, two otherprinciples must also be observed. The first one is
lexspecialisderogatlegigeneralis(A special law prevails over a general
law).128 The second one is Lex posterior generalis non derogatlegipriori
specialis (a later law, general in nature, does notrepeal an earlier law which
is more special in nature).129

126
Villiger, M.E., Customary International Law and Treaties, MartinusNijhoff Publishers,
Dordrecht,
1985, 36.
127
Wolfke, K., Custom in Present International Law, 2nd.rev.ed., MartinusNijhoff Publishers,
Dordrecht, 1993, 114-5.
128
Whether a rule is lexspecialis or not can be determined ratione personae, that is regarding the
number of those that are bound by the rule. In this sense, a rule can be a lexspecialis if it binds
fewStates, as opposed to a convention with many parties, or to a general customary rule, which is
bindingergaomnes. A rule can also be special, rationemateriae, in that it furnishes, in comparison
with lexgeneralis, the deeper, more detailed, perhaps exceptional, regulation on the same subject-
matter.
129
See the comment of Ago in the ILC, Yearbook of the ILC, 1966 vol. 1, Part 2, 167, para 50.
 (3)Inconsistent treaties

If there are successive treaties relating to the same subject matter, which
treaty shallprevail? The answer can be found in Article 30 of the Vienna
Convention on the Lawof Treaties 1969, which is to be applied subject to
Article 103 of the United NationsCharter.130 The essence of Article 30 is that
‘when all the parties to the earlier treatyare parties also to the later treaty,
then the general rule of lex posterior derogatlegi priori applies and the later
treaty shall prevail over the earlier treaty’.131

Article 103 of the Charter: Clause paramount

Article 103 of the Charter reads: “In the event of a conflict between the
obligations ofthe Members of the United Nations under the present Charter
and their obligationsunder any other international agreements, their
obligations under the present chartershall prevail”. This article is known as
‘clause paramount’ and it clearlyacknowledges the supremacy of the UN
Charter over any other treaties. In theLockerbie case (Provisional
Measures)132, the International Court of Justice confirmsthis and held that by
virtue of Article 103, obligations of the parties under the UNCharter (that is,
the SC Resolution 748) prevail over their obligations under theMontreal
Convention.

130
Article 30(1) of the Vienna Convention on the Law of Treaties 1969.
131
Article 30(3), Ibid. However, According to Article 30(4),“When the parties to the later treaty
do not include all the parties to the earlier one:
(a) as between States parties to both treaties the same rule applies as in paragraph 3;
(b) as between a State party to both treaties and a State party to only one of the treaties,
thetreaty to which both States are parties governs their mutual rights and obligations.”
132
Case Concerning Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libya v UK) (Libya v United States),
(1992) ICJ Rep. 3,114.
 (4)General Principles of Law and Other sources

Since the main function of general principles of law is to fill gaps in treaty
law andcustomary law, it would appear that treaties and custom prevail over
generalprinciples of law in the event of conflict. Judicial decisions and
learned writers aredescribed in Article 38(1)(d) as ‘subsidiary means for the
determination of rules oflaw’, which suggests that they are subordinate to
the other three sources listed:treaties, custom and general principles of law.
Judicial decisions usually carry moreweight than learned writers, but there is
no hard and fast rule; much depend on thequality of the reasoning which the
judge or writer employs.

CONCLUSION

Custom and treaties constitute the two most important sources of international law.
Adistinctive feature of international law making is the absence of any
hierarchybetween custom and treaties as sources of law. They are of equal rank
and status. Nevertheless, in recent years, a new category of international rules has
come intobeing: jus cogens or peremptory norms of general international law.
States may notderogate from jus cogens through treaties or customary rules. It
follows that jus
cogens is hierarchically superior to all the other rules of international law.Having
said that, we can now summarize the main points on the application of thesources
of international law.
(1) If there is a treaty binding the two parties to a dispute, it is quite logical that
the Court will, first of all, look at the treaty, which is a jus scriptum. Even in
 such a situation, however, we cannot say that customary law is entirely
irrelevant. There may be quite a number of legal issues involved in the
dispute. The treaty cannot have solutions to all of them. The Court,
unavoidably, has to apply customary law to deal with issues in respect of
which there are no answers in the treaty. In a number of cases, the Court will
need to apply customary law to interpret the provisions of the treaty.
Therefore, it appears that the Court in most cases apply both treaty law and
customary law simultaneously.
(2) If there is no treaty binding the two parties to a dispute, then the Court has to
rely exclusively on customary international law for the determination of the
dispute.
(3) If no relevant rule can be found in treaty law and customary law, the Court
may apply the general principles of law accepted by most national legal
systems.
‘Equity’ is applied by the Court as a general principle of law.
(4) Judicial decisions and writings of publicists are subsidiary means for the
determination of the rules of law. Judicial decisions appear to have more
weight. Even though in theory there is no doctrine of binding precedent in
international law, in practice the Court always refer to its previous decisions
and has established its jurisprudence.
(5) Judicial decisions, resolutions of the General Assembly, national legislation,
and the like are the material sources of international law and they can be the
evidence of customary law.
Legal Maxims (used)

 Ex aequoet bono - According to the right and good or from equity and
conscience.
 Pactasuntservanda - Agreements must be kept.
 Res inter aliosacta- Acts of others, or transactions between others.
 Pactatertiisnecnocentnecprosunt- The principle that treaties do not impose
any obligations, nor confer any rights, on third states.  
 Ergaomnes- Rights or obligations are owed toward all.
 Jus cogens- Elementary rules that concern the safeguarding of peace and
notably those that prohibit recourse to force or the threat of force. Norms of
a humanitarian nature are included, such as prohibitions againstGenocide,
Slavery, and Racial Discrimination.
 Opiniojurissivenecessitatis - An opinion of law or necessity.
 Non liquet - It is not clear.
 Lex posterior derogatlegi priori - More recent law prevails over
(abrogates, overrules, trumps) an inconsistent earlier law.
 Lexspecialisdegoratlegigenerali - Specific law prevails over (abrogates,
overrules, trumps) general law.
 Contraproferentem - An ambiguous term will be construed against the
party that imposed its inclusion in the contract.
 Ex aequoet bono - In equity and good conscience.

BIBLIOGRAPHY