Sources of International Law
L E C T U R E # 2 , 2 8 T H S E P T / 5 T H O C T. 2 0 1 5
(SHARAFAT ALI)
Sources of International Law –
A complex Phenomena
Ascertainment of the law in domestic legal order – not difficult on process
 Hierarchical character of national legal order
 Act of Parliamentarians – Statutes
 The Law reports to interpretation – Court cases
Situation in International Law – Strikingly in contrast to domestic law
 Lack of legislatures
 Absence of formal executives
 Non- hierarchical structure of courts
 Anarchic nature of world affairs
 Clash of competing sovereignties
1- International Court of Justice
Sources of International Law
Article 38 (1) Statute of the International Court of Justice.
The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
ICJ – Cont..
Article 59.
 The decision of the Court has no binding force except between the parties and in respect of that particular case.
Article 93 of UN Charter
 All member states of UN are ipso facto parties to the Statue
 (Non- members can specifically become parties to the Statue of the Court) – Case of Switzerland that joined UN in 2002
Classification of Sources of IL
 Formal vs Material sources
 Formal confer upon the rules of obligatory character
 Material are the actual content of the rules.
 Substantive vs Procedural
2. Law of Treaties
International Conventions
Law of Treaties
 An international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation
Art. 2 (1) (a) Vienna Convention on the Law of Treaties, 1969.
2- Law of Treaties – Cont…
Multilateral Treaty
◦ Existence of more than two parties
Bilateral Treaty
◦ Between two parties
Regional Treaty
◦ Between parties in the same region
2- Law of Treaties – Cont…
Variety of Designations
◦ Treaties, Agreements, Acts, Conventions, Declarations, Protocols.
◦ The designation alone does not affect the binding force of the instruments or its characterization as a
treaty.
◦ Convention on Biological Diversity
◦ Cartagena Protocol on Biosafety
◦ United Nations Framework Convention on Climate Change
◦ Kyoto Protocol
2- Law of Treaties – Cont…
Adoption of a treaty
The states draw up a text
The expression of agreement with the text is known as adoption of a treaty.
 1.The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided
in paragraph 2.
 2.The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and
voting, unless by the same majority they shall decide to apply a different rule (Art. 9 Vienna Convention)
2- Law of Treaties – Cont…
Signature
Expresses the consent of the state to be bound by the treaty.
It may be subject to ratification
2- Law of Treaties – Cont…
Ratification
 “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so
named whereby a State establishes on the international plane its consent to be bound by a treaty
2- Law of Treaties – Cont…
Reasons for ratification
States need time before they feel able to commit themselves to it.
The constitutions may provide for a mechanism for undertaking international obligations
Needs time to enact the enabling legislations.
2- Law of Treaties – Cont…
Refusal of ratification
The ultimate right to refuse to ratify is not impaired
A sate cannot sign a treaty and subsequently conduct itself as if it had no connection with it or as if its
signature were a mere act of authentication.
2- Law of Treaties – Cont…
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
 (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval,
until it shall have made its intention clear not to become a party to the treaty; or
 (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry
into force is not unduly delayed.
 Art. 18 Vienna Convention.
3- International Customs
 Any primitive society prescribes rules of behavior – what’s permitted and what’s not.
 They are usually not Written down or codified.
 Custom is an authentic expression of the needs and values of the community any given time.
International Custom
 Within contemporary legal systems (esp. in developed world) is relatively unimportant at domestic level.
 It is one of the primary sources of international law
 Due to nature of international system and its lack of centralized government.
Two elements
 State practice and behavior
 Acceptance of the practice as obligatory
 Opinio juris
3- International Customs – Cont….
State Practice
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Common and consistent
Uniform practice is not necessary
Sufficient degree of participation
No substantial dissent
Persistent objector
4- Opinio jurisin International Law
Feeling of obligation
State’s activity is legally obligatory.
 Lotus Case (between France and Turkey)
States will behave a certain way because they are convinced it is binding upon them
 Child Protection related legislation (JJS Bill 2015)
5- General Principals of Law
 When the point is neither covered by parliamentary statute nor by judicial precedent
 In such instances, the Judge will relay on
 Principals that guide legal system
 Consider public policy and
 Principals of equity.
 Legal acumen
6- Other sources
Judicial decisions
Writings of eminent and well acknowledged jurists
International Law Commission