SOURCES OF INTERNATIONAL LAW

International law is the name of the body of rules which regulate the conduct of the states in their
relations with one another. The sources of International law are the materials and processes out
of which the rules and principles regulating the international personalities are developed. The
sources are found in the International Court of Justice (ICJ) statute by virtue of Article 38.
The ICJ is the court whose functions is to decide in accordance with International law such
disputes as are submitted to it shall apply. The major sources of international law include
Treaties, international customs, general principles of law as recognized by civilized nations,
Judicial decisions and teachings of the most highly qualified publicists of the various nations.
These sources were recognized in the case of Thirty hogsheads of sugar v Boyle 1where justice
Marshall observed that “the law of nations is the great source from which we drive those rules
respecting neutral rights, which are recognized by all civilized and commercial states
throughout Europe and America, this law is part unwritten and part conventional” which same
position was retained in the case of United States v La Jeune2. However., according to
Lawrence and Oppenheim that there is only one source of International law and that is consent
of nation.

International Covenants are the first sources of international law. The term treaty may be
defined as the agreement entered between the nations which brings about such duties and
obligations on the participating states and once enforced they are known as covenants They are
known by a variety of terms-conventions, covenants, agreements and among others but they
are generally the creation of written agreements. Conventions are provided for under
Article38(1) that uses them as International Conventions. Treaty can be bilateral treaty which is
formed between two nations and both states are bound to the terms of those treaties and a case in
point is Pulp Mills on the River Uruguay (Argentina v. Uruguay)3 where Argentina sued
Uruguay for not consulting it on the construction of Pulps yet they shared river boundaries as
international boundaries of the two. Court ruled that Uruguay was obligated by treaty to notify
and consult with Argentina before authorizing the pulp mills and letting construction start; and
that Uruguay breached this obligation. Secondly, multilateral Treaty which is a treaty between

1
13 U.S. 191 (1815): Filed 02/08/1814
2
26 F. Cas. 832 (1822)
3
4 May 2006
more than two nations. Mostly known treaties are Geneva convention(s) that are series of
treaties on the treatment of prisoners of war, the Vienna Convention which was a diplomatic
relation of 1962 which defines a framework for diplomatic relations between independent
countries, the Hague Convention of 1899 and 1907 on law of war and neutrality. It follows that
there are two types of International treaties that is Law making treaties which relate to treaties
which are entered into by very many states and such treaties are considered as direct source of
international law and are binding on all participating states. And secondly treaty contracts which
are entered between two states. Such treaties are binding to only those states though they help in
development of customary law like the treaty between Indo Nepal treaty on trade that was later
adopted by other states as a custom though not parties to the Treaty.

It follows that the Vienna Convention on the law of Treaties (VCLT) lays down the rules of
international law regarding how a treaty can be created, when and how states should be bound by
a treary , the reservation clauses and among others.. To note is that the VCLT is not applicable to
unwritten laws though not affecting them as customary law are governed by their own rules
Articles of the Vienna Convention on the law of Treaties provide that for any state to join the
International law treaty, the state have to consent to the treaty which imports sovereignty of the
state4 as discussed in the case of S.S Wimbledon5 , as the states start by adoption of the text
done by the representatives of the state who drafted the text or by casting of a vote in the
international conference were two thirds of the votes count.6 It is followed by the means of
expressing consent by the parties to be bound by a treaty as the signature maybe subject to
ratification, acceptance or approval which is normally done by the Parliament of those states, in
so doing, the signature imports the readiness and willingness of the parties to partake in the
treaty making process,7 and there consent is given exchange of instruments constituting a treaty8
Where a certain state was not party to the treaty, they may show willingness to join whose
consent is through accession.9 However such Treaties carry reservation Articles where a party
can exclude a provision that a state intends not to follow though some treaties exclude them. In

4
According to Article 6 of the Vienna Convention on the law of Treaties
5
As examples of international agreements placing upon the exercise of the sovereignty of certain states
6
According to Article 9 of the Vienna Convention on the law of Treaties
7
According to Article 11 of the Vienna Convention on the law of Treaties
8
According to Article 13 of the Vienna Convention on the law of Treaties
9
According to Article 15 of the Vienna Convention on the law of Treaties
the case Whaling in the Antarctic (Australia v. Japan: New Zealand intervening ) 10“the Court first
found that it had jurisdiction to entertain the case, rejecting Japan’s argument that the dispute
fell within the scope of a reservation contained in Australia’s declaration recognizing the
Court’s jurisdiction as compulsory” hence Japan couldn’t rely on a Reservation contained in the
declaration.

Customary laws are the default las that governed states before coming of any written law hence
the primitive source of law prior to courts and the second source of International law. It’s
provided for under Article 38(1) of the statutes of the International Court of Justice
recognizes them as international custom and as a source of International law. According to
Kopelmanas, he found that “there are two factors in the formation of custom which included
a material fact which is a repetition of similar acts by states and a psychological element
(Opinio Juris) which is the feeling on the part of the states that in acting as they act, they are
fulfilling a legal obligation”11 Hence it can be concluded that the customary law elements are a
settled practice and Opinio Juris.

For state practice, must be extensive including many states particularly affected by the rule.
When the court is considering such a practice, they look at the consistence and uniformity of the
practice whenever circumstances present themselves. A State practice example may include
Asylum. In the case of Peru v Colombia 12which was about a refugee who escaped to the
Colombian Embassy in Lima and the Embassy requested Peru to grant him safe passage out of
Peru but it refused Court looked at the state practice and found that there was so much
uncertainty and contradiction, so much fluctuation and discrepancy that it was not possible to
discern in all this any constant and uniform usage accepted as law. Court also found that
customary rule could not be invoked against Peru which from its attitude didn’t adhere to it or
was on the contrary repudiated it. Further in the case of Nicaragua v United states 1986 the
question was whether there was a customary norm which prohibited a state from interfering with
the internal issues of another state as USA had violated sovereignty of Nicaragua. Court found
that the U S was in breach of its obligations under customary international law not use force
against another state by intervening in its internal affairs. However, where there is a dissenting
10
31 May 2010
11
Kopelmamanas “custom as a means of the creation of International law” The British Year book of International law (1937)
p.129
12
10 January 1950
case, such customary laws don’t bid them, in the Anglo-Norwegian Fisheries case (1951). The
case concerned the manner in which Norway calculated its territorial sea and the Court found
that Norway was not bound by the existing general rules of customary law relating to the matter.
A persistent objector is not bound by the eventual customary rule if the state fulfils two
conditions:

The other element of Opinio Juris which is a belief that practice is rendered obligatory by the
existence of a rule of law requiring it. Reference can be made in the case of S.S Lotus 13which is
a case of two vessels that collided on the high seas, the Turkish captured the French captain of
the vessel and charged him in its jurisdiction. Court found that France couldn’t prove states had
often in practice abstained from instituting criminal proceedings and not that they recognized
themselves as being obliged to do so. That for only if such abstention were based on their being
conscious of having a duty to abstain would it be possible to speak of an international custom.

The General principles of law recognized by civilized nations are also sources of law that
have got recognition overtime from different states. These principles are recognized under
Article 38(1)c of the ICJ statute and the rationale for their use is as to when a court cant find any
remedy either in the treaty or customary law, hence such general principle was established as a
mechanism to settled disputed that are vague, ambiguous and where courts have to decide on
legal personality of corporations as seen the case of Barcelona Traction Co case of 1970 where
court held that it was a general rule of international law that when an unlawful act was
committed against a company, only the state of incorporation of a company can sue. The general
principles recognized are Estoppel and Equity.

For Estoppel, its an equitable principle under many principles laws and the ICJ has used it in
many case of Temple of Preah Vihear14, court found that Thailand was precluded by its conduct
from denying the frontier indicated on the map and in another ICJ case of Northsea Continental
shelf,15 court found that the only existance of the situation of Estoppel could suffice to let
substance to the contention that the federal republic was bound by the Geneva Convention on the
Continental shelf. Equity is also another principle that is viewed in terms of just and fairness and
the ICJ court has also said so in several cases as in Diversion of Water from the Meuse case
13
August 2, 1926
14
Temple of Preah Vihear [1962] ICJ Rep at p 1
15
February 20, 1969
(1937), Judge Hudson declared: What are widely known as principles of equity have long been
considered to constitute a part of international law, and as such they have often been applied by
international tribunals, similary it was discussed at length by Judge Weeranmantry in the Case
Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen
(Denmark v Norway)(1993)

Judicial decisions are also sources of International Law by virtue of Article 38(1)(d) however,
these judicial decisions are subsidiary source of international law and are subject to Article 59 of
the statute of ICJ which imports that the decision of the court have no binding force except
between the parties in respect of that case. It also follows that there is no doctrine of Stare
Decisis in International law16, the above notwithstanding, the ICJ refer to its past decision and
advisory opinions to support its explanation of a present case. Article 38 does not limit the judicial
decisions that may be applied to international tribunals. If a municipal court’s decision is relevant, it may
17
be taken into account – the weight attached will depend on the standing of the court

Teachings of the most highly qualified publicists of the various nations is also another
recognized subsidiary source of International law considered by the ICJ as per Article 38.
Famous writers like Grotius, Gentili, Suarez and others are hailed for their vast knowledge
published and subsequently used by the Courts. Hence courts refer to the knowledge of such
writers for purposes of interpreting International law. Such teachings were used in the United
State Supreme Court in the Paquete Habana Case.18

Other possible sources are Resolutions of international organizations, Resolutions of regional

In conclusion, I have presented above with relevant judicial decisions and some authorities the
major source of international law by virtue of Article 38 of the International Court of Justice that
though some of them have been there for some time, others have evolved with time.

BIBIOGRAPHY

Anglo-Norwegian Fisheries case (1951).

Case of S.S Wimbledon 16 January 1923

Case of North sea Continental shelf February 20, 1969

Case of Peru v Colombia 10 January 1950

Diversion of Water from the Meuse case (1937),

International Court of Justice (ICJ) statute

Nicaragua v United states 1986

Pulp Mills on the River Uruguay (Argentina v. Uruguay) 4 May 2006

Sourcebook_on_Public_International_Law.pdf

Temple of Preah Vihear [1962] ICJ Rep at p 1

Thirty hogsheads of sugar v Boyle 13 U.S. 191 (1815): Filed 02/08/1814

United State Supreme Court in the Paquete Habana Case (175 US(1900) 677 at 700-1)

United States v La Jeune 26 F. Cas. 832 (1822)

Vienna Convention on the law of Treaties (VCLT)

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) 31 May 2010