2016-A/ NIL

2017-A/NIL

Question 4/2018-A(incomplete )
Discuss the interpretation of the concept of ‘soft law’ in the international legal
system.

General remarks
The module guide was at pains to explain that the ‘law way of thinking’ about
international problems was more culturally specific than those brought up in a
Western tradition might care to acknowledge. This question should have allowed
candidates to explore this argument.
Law cases, reports and other references the examiners would expect you to use
The ability to answer this question depended upon familiarity with Chapters 2 and 3
of the module guide and the Essential reading specified in Section 3.7.
Common errors
The most common failure here was simply a lack of understanding of either what
‘soft law’ is, or what its significance might be.
Examiners’ reports 2018
7
A good answer to this question would…
begin by explaining that more than one meaning may be attributed to ‘soft law’. It
might be useful to begin by explaining why the term ‘soft law’ is used and here a
discussion of alternative views of international law would be helpful. The module
guide (in Section 2.4) uses a quotation from Georges Abi-Saab, which makes the
point that western perspectives do not always coincide with the understanding of
international law held in other societies, which might suggest a space for something
less than legally binding agreements. An explanation and discussion of Abi-Saab’s
argument would have been highly pertinent in showing the need for ‘soft law’.
A first meaning of soft law that might have been considered, concerns agreements
between states that have no provision for enforcement in the event of any default.
Such documents might merely oblige the parties to pursue an objective in good
faith. Clearly, there is no intention to create legal relations. On occasions,
documents that had all the appearance of treaties have explicitly stated that there is
no intention to create legal relations and a good example of this would be the
Helsinki Final Agreement of 1975. Good answers might be expected to observe that
the effect of such agreements may yet be substantial and again the Helsinki Final
Agreement provides a clear example that could have been discussed.
A second meaning sometimes attributed to soft law concerns at least some General
Assembly resolutions. While these could not in themselves create international law
unless they can provide evidence of an intention to create customary international
law, they nevertheless are capable of having the potential to become normative –
that is they may, if widely accepted, come to provide the necessary opinio juris.
Until such time of course, they may be said to be ‘merely’ soft law. Examples could
be provided.
Poor answers to this question…
demonstrated insufficient understanding of the meaning of soft law in the
international legal system.
International law consists of rules having varying degrees of force.
Some of these rules contain binding obligations while others, such as
acts adopted by IGOs, are non-binding. The influence of non-binding
rules on the development of international law and on State practice is
considerable, although these rules cannot be classified as law in
positive law. They are called ‘soft law’.

There is no definition of the ‘term International Soft Law’ as noted by

Joseph Gold: ‘Almost as many definitions of soft law can be found as
there are writers’. Even so, Francesco Francioni, attempted to define
the International Soft Law by using the technique of exclusion: he
stated that “Soft Law are international norms and instruments that do
not find mention as a source in the conventional sources of
international law”. Professor Weil states, these obligations “are
neither soft law nor hard law: they are simply not law at all.”

We can define soft law as those nonbinding rules or instruments that

interpret or inform our understanding of binding legal rules or
represent promises that in turn create expectations about future
conduct. This definition preserves the doctrinal distinction between
binding and nonbinding norms, but also tracks an intuitive difference
between quasi-legal rules and purely political rules.

Defining soft law this way presents at least two immediate challenges.
First, it identifies the border between soft law and “hard” law, but it is
vague with respect to the distinction between soft law and the absence
of any obligation. The second challenge presented by soft law is its
breadth. Anything that is “law-like” can be described as a form of soft
law. This includes formal written documents signed by states but that
for whatever reason do not satisfy the requirements of a treaty,
informal exchanges of promises through diplomatic correspondence,
votes in international organizations, the decisions of international
tribunals, and more.

The first explanation of soft law worth mentioning is the claim that
states prefer soft law because states are risk averse and thus generally
prefer to lower the costs of avoiding their obligations. A second family
of explanations of soft law is that it is the product of domestic political
and legal forces. There is clearly much to be said for this argument.
Domestic politics and legal institutions play a major role in shaping how
states interact with each other at the international level.

Soft law has many advantages. It allows States to participate in the

creation of new rules without the necessity of implementing them into
national law. In many areas, such as the protection of the environment,
States are not ready to accept binding obligations at a particular time
but are gradually taking measures to conform with international
standards. Further non-State actors such as IGOs, NGOs, international
private associations and corporations can participate in the elaboration
and implementation of soft law. In this respect codes of conduct have
become an important part of soft law. Non-binding rules some
provisions of international treaties, political declarations made by two
or more States, recommendations and resolutions of IGOs, in particular
those adopted by the UNGA and codes of conduct.

Due to Soft law, we introduce the concept of international common law

(“ICL”), which we define as a non-binding gloss that international
institutions, such as international tribunals, put on binding legal rules.
The theory of ICL is based on the observation that, except occasionally
with respect to the facts and parties to the dispute before it, the
decisions of international tribunals are non-binding interpretations of
binding legal rules. States grant institutions the authority to make ICL as
a way around the requirement that states must consent in order to be
bound by legal rules.

There are three complementary explanations for why states use soft
law. First, and least significantly, states may use soft law to solve
straightforward coordination games in which the existence of a focal
point is enough to generate compliance. Second, states will choose soft
law when the marginal costs in terms of the expected loss from
violations exceed the marginal benefits in terms of deterred violations.
Third, under the “delegation theory,” states choose soft law when they
are uncertain about whether the rules they adopt today will be
desirable tomorrow soft law makes it easier for such states to renounce
existing rules.

Soft law often takes the form of an international instrument that has
some of the features of a formal treaty, but falls short of the
requirements to be one. In general, this means that the states involved
do not intend to be bound by international law. The Universal
Declaration of Human Rights, for example, lays out a set of human
rights obligations for states, but is explicitly not “binding” on states. To
better understand the impact of soft law, we start by considering
international agreements generally. Though the legality of a promise
contained in an agreement, the penalty for deviating from it, and actual
likelihood of future compliance with it, may vary, in all cases states are
representing to one another what they intend to do in the
future.

Given the weakness of the international enforcement system states

entering into agreements often turn away from readily available and
inexpensive ways to make the agreements more credible and the
commitment more reliable. Though there may also be retaliation and a
reputational sanction in response to breach, there is no reason to think
that these consequences are sufficient to provide for an efficient level
of compliance. Thus, even when the parties opt for a treaty they often
fail to provide the full set of available enforcement mechanisms. When
they select soft law, as they often do, they opt for an even less credible
commitment device.

Certain international instruments are regarded as creating soft law due

to the sheer number of States that have ratified them. Perhaps, the
better view is to regard UNGARs as evidence of existing customary law,
or of opinio juris, or of the practice of States, depending on each case.
The weight of the evidence would be determined by considering all the
relevant factors surrounding the adoption of the resolution in question
– the degree of support for the resolution; whether or not that support
was widespread amongst ideologically or politically divided groups; the
intention of States in voting for the resolution as illustrated by the
debates; the form of words used, etc. This was seen in Texaco v Libya.
Prominent examples among these include the 1992 Rio Declaration on
Environment and Development, the 1975 Helsinki Final Act of the
Conference on Security and Cooperation in Europe, and the 1978 Bonn
Declaration on International Terrorism. Although soft laws do not
create any legal obligation, they exact pressure on States—so much so
that it is not considered wise to ignore them.

Concluding our essay it can be stated that soft law plays major role in
development of relationship between states by providing another
source as an alternative to article 38, but its non-binding nature also
pose a challenge in itself.
Question 2/ 2019-A
‘The accepted sources of international law illustrate the distinctiveness of the international legal
system from domestic law.’
Discuss.

This question requires discussion on the sources of the international

law in which we will have to discuss how sources of the international
law make it distinct from the municipal law. According to Article 38(I) of
Statute of ICJ (International Court of Justice), there are 4 sources of
international law.

Article 38(1)(a) mentions treaties which is known by a variety of terms

—conventions, agreements, pacts, general acts, charters, and
covenants—all of which signify written instruments in which the
participants (usually but not always states) agree to be bound by the
negotiated terms. Treaties may be bilateral or multilateral. Treaties
with a number of parties are more likely to have international
significance, though many of the most important treaties (e.g., those
emanating from Strategic Arms Limitation Talks) have been bilateral. A
number of contemporary treaties, such as the Geneva
Conventions (1949) and the Law of the Sea treaty (1982; formally
the United Nations Convention on the Law of the Sea), have more than
150 parties to them.In most civil-law countries, the adoption of
a treaty is a legislative act. The relationship between municipal and
international law varies, and the status of an international treaty within
domestic law is determined by the country’s constitutional provisions.
In federal systems, the application of international law is complex, and
the rules of international law are generally deemed to be part of the
federal law. For instance The Constitution of the United
States stipulates (Article VI, Section 2) that treaties “shall be the
supreme Law of the Land.” Treaties are negotiated by the president but
can be ratified only with the approval of two-thirds of the Senate.

Custom is main source of international law which evolved from

customary practices of states mentioned in Article 38(1)(b).
International custom is the earliest source of international law and
binding on all states. Customary rules of international law are the rues
which have been developed from long process of historical
development. It is possible to detect two basic elements in the make-
up of a custom. These are the material facts, that is, the actual
behaviour of states, and the psychological or subjective belief that such
behaviour is ‘law’. When it comes to role customs in municipal law then
the United Kingdom takes an incorporationist view, holding that
customary international law forms part of the common law. British law,
however, views treaties as purely executive, rather than legislative,
acts.The same principle applies in other countries where the English
common law has been accepted. Although the incorporationist view
regards customary law as part of the law of the land and presumes that
municipal laws should not be inconsistent with international law,
municipal laws take precedence over international law in cases of
conflict.

General principles of the law recognized by civilized state is the third

source of the international law mentioned under Article 38(1)(c).There
are two views under this head. One is where; the general principles
which are found in domestic jurisprudence can be applied to
international legal questions. And second is where; general principle of
law recognised by civilised state has emerged as a result of
transformation of broad universal principles of law applicable to all
mankind into specific rules of international law. The principle of law
becomes general principal of law only if it is recognised by the World
court and not if it is recognised by the domestic law of large number of
states. Such general principle of law is applied by the world court only
where there is no international custom or convention on the matter in
dispute. Whereas, general principles of the law applies in state in every
circumstances wherever they are applicable, general principles in
municipal legal system does not require authorization of the domestic
court.

International Judicial decisions is not direct source of international law

and it is subsidiary means for the determination of rules of law
mentioned under Article 38(1)(d). Article 59 of the Statute of
International Court of Justice declares that the international court’s
decisions will be binding only between parties of the particular case
except the court itself. However, ordinary court does not deviate from
its earlier decisions and can change its earlier decisions only in very
special circumstances. Hence the limitation is ICJ is very limited as
compare to courts in municipal law.

Having discussed the sources and their distinct character vis-à-vis

municipal law, now we will analyze how article 38 is playing role into
dintinct character of international law. Firstly, Article 38 restricts the
evolution and applicability of legal principles to states as Article 38
continues to presuppose that international law deals with states alone.
It ignores all non-state actors, which have evolved as subjects of
international law today. Whereas domestic law, do deal with all matters
that comes at front of it. Secondly, the Article emphasizes a consent-
based legal system that hinges upon voluntary action, but in domestic
law we see more of coercion element in the law rather than consent.
Finally, the hierarchical arrangement of the sources themselves is
fallacious, but in domestic law we do see hierarchical order with
legislation on top. Besides, the ICJ is not the only international dispute
resolution body; there are plenty of tribunals, arbitration-based
organizations, and courts. With so many international dispute
resolution bodies, it is parochial to think that the ICJ has the last word
on the question of sources. Having discussed this we do know that
article 38 is not the final source of the international law, it needs
improvement as times are changed whereas we do see certainty of
domestic law that help to evolve rapidly to meet new challenges.

International Soft law also introduce us to distinct character of

international law. International law is mostly considered as the soft law
its agreements, principles and declarations are not legally binding. Soft
UN General Assembly resolutions are an example of soft law. Hard law
refers generally to legal obligations that are binding on the parties
involved and which can be legally enforced before a court, such
principles are mostly found in municipal law like legislations and
decisions by courts.

Concluding our discussion it can be said sources of the international law

plays pivotal role to distinguish it from municipal law, whereas these
sources are not exhausted, as they need improvement with change
times.
Question 2/2020-A
Evaluate the role of customary international law in the contemporary international legal
regime.

This question requires to analyze the role of the customary

international law in modern times. In order to answer this question
firstly we will have to understand the customary international law and
then we will move to evaluate its application in modern times.

There are five different sources mentioned in article 38(1) of the

Statute of International Court of Justice(ICJ). International custom is
one of the oldest source of the international law dating to its days to
Roman and Greek civilizations. However, in modern era, it is the article
38(1)(a) that declares international custom as one of the source law
by stating “international custom, as evidence of a general practice
accepted as law”.

It is possible to detect two basic elements in the make-up of a custom.

These are the material facts, that is, the actual behaviour of states, and
the psychological or subjective belief that such behaviour is ‘law’. As
the International Court noted in the Libya/Malta case, the substance of
customary law must be ‘looked for primarily in the actual practice and
opinio juris of states’. There are a number of points to be considered
concerning the nature of a particular practice by states, including its
duration, consistency, repetition and generality. In international law
there is no rigid time element and it will depend upon the
circumstances of the case. The basic rule as regards continuity and
repetition was laid down in the Asylum case decided by the
International Court of Justice (ICJ) in 1950. The Court declared that a
customary rule must be ‘in accordance with a constant and uniform
usage practised by the States in question’. Whereas, the opinio juris, or
belief that a state activity is legally obligatory, is the factor which turns
the usage into a custom and renders it part of the rules of international
law. To put it slightly differently, states will behave a certain way
because they are convinced it is binding upon them to do so.

There are disagreements as to the value of a customary system in

international law in contemporary times. Some writers deny that
custom can be significant today as a source of law, noting that it is too
clumsy and slow-moving to accommodate the evolution of
international law any more, while others declare that it is a dynamic
process of law creation and more important than treaties since it is of
universal application. Another view recognizes that custom is of value
since it is activated by spontaneous behaviour and thus mirrors the
contemporary concerns of society. However, since international law
now has to contend with a massive increase in the pace and variety of
state activities as well as having to come to terms with many different
cultural and political traditions, the role of custom is perceived to be
much diminished.

More than that, custom does mirror the characteristics of the

decentralized international system. It is democratic in that all states
may share in the formulation of new rules, though the precept that
some are more equal than others in this process is not without its grain
of truth. If the international community is unhappy with a particular law
it can be changed relatively quickly without the necessity of convening
and successfully completing a world conference. It reflects the
consensus approach to decision making with the ability of the majority
to create new law binding upon all, while the very participation of
states encourages their compliance with customary rules, hence
custom can play pivotal role in democratization of international legal
regime creating consensus and unity among international arena.

Amid a variety of conflicting behaviour, it is not easy to isolate the

emergence of a new rule of customary law and there are immense
problems involved in collating all the necessary information. It is not
always the best instrument available for the regulation of complex
issues that arise in world affairs, but in particular situations it may meet
the contingencies of modern life. As will be seen, it is possible to point
to something called ‘instant’ customary law in certain circumstances.
For instance, counter- terrorism has become new phenomenon for
international law to deal with, customary international law could be
developed by states in a planned and purposeful manner to respond
more expeditiously to particular new challenges on the international
plane, in circumstances where it may be unlikely that a treaty could be
developed in the time necessary to meet those challenges. One recent
possible example concerns the legal basis for responding to the threat
posed by well-organised non-state actors operating out of one country
("the host state") and carrying out armed attacks within the borders of
another country ("the target state"), if we would have implemented it
then catastroph like 9/11 could have been averted.

However, no one can deny fact that there has been dramatic reduction
in role of custom as a source of international law in modern times. This
is mainly due to the fact that the process of the development of a new
custom is very slow. However, in modern times also the development
of new customs is possible and at times customs have developed with
accelerated period. Principles relating to sovereignty over air space and
continental shelf are it glaring examples. But, in view of the accelerated
speed of the changes in international community, custom has now
become and inadequate means for bringing about the charges and
development of international law. Thus, the development of the
custom is vey slow and as compared to it, rapid changes can be
effected through treaties and conventions so as to adopt international
law in accordance with the changing times and circumstances.

The Soviet Union regards custom as an inadequate means for the

development of international law. In one of his articles, Tunkin has
expressed the view that the development of custom also is based on
the agreement between states. Consequently, customary rules are
binding only on those states who have given their consent for them.
According to the Soviet view, therefore, agreement between states is
the only adequate means for the development of international law and
customary international law is losing its significance.

In South West Africa case ICJ Judge Tanaka observed the method of the
generation of customary international law is in the stage of
transformation from being an individualistic process to being a
collectivist process. This phenomenon can be said to be the adoption of
the traditional creative process of international law to the reality of the
growth of the organized international community. It can be
characterized, considered from the sociological view point, as a
transaction from traditional custom making to international legislation
by treaty. Thus in modern times the importance of custom as a source
has greatly reduced, with the simultaneous rise in the importance of
the treaties and conventions, for the development of international law.

Lastly, it may be noted as pointed out by Edward Collins, “international

organizations also contribute to the development of customary
international law by providing a clear, concentrated forum for state
practice, particularly in the general assembly of the united nations,
where more than 120 states are represented, statements and the
votes of represenatatives on legal matters provide evidence of existing
customary international law, as is illustrated by the discussion on, and
the adoption of the resolutions amount to an interpretation of the rules
and principles which the charter already contains and which are in
consequence binding upon member states authorized by reason of the
standing of the United Nations.
2021-A/NIL

SECTION-B

Question 2
Explain and discuss the relationship between customary international law
and treaty law.
General remarks
This question might be thought to require a rather bland doctrinal response and
indeed such a response would be an excellent start to an answer.
Law cases, reports and other references the examiners would expect you to use
Both the subject guide and the appropriate textbook discuss this issue in some
detail. The North Sea Continental Shelf Case of 1969, in the ICJ is important, as is
the Vienna Convention on the Law of Treaties, 1969. Familiarity with Article 38 of
the Statute of the International Court of Justice was also required.
Common errors
Here the most common failing was an inability to go beyond a bland doctrinal
response and to fail to see that there are controversial issues to be discussed.
Examiners’ reports 2016
3
A good answer to this question would…
demonstrate an ability to answer this question which addresses a fundamental
aspect of international law with confidence. Definitions of both customary
international law and treaty law should be provided. Many answers began (usefully)
by alluding to the content and limitations of Article 38 of the Statute of the ICJ. At
some point, it will be necessary to refer to the Vienna Convention on the Law of
Treaties, 1969, explaining its relevance to the question (i.e. the date of its coming
into effect and its effects, when relevant, upon customary international law). Some
discussion will be appropriate of the effect of a treaty upon already existing
customary international law (an explanation of when it does more than simply
modify customary international law for the parties to the treaty).
It might also be expected that the question of how customary international law may
change over time will also be discussed – and probably a reference to the old
argument that the only way to change customary international law is by breaking it.
Rosenne’s analogy of different sized animals making a path through a jungle had
also been expected to make an appearance.
Very good answers considered the controversial aspects of opinion juris sive
necessitates – namely how it is to be evidenced and how a ‘belief’ may be attributed
to a non-sentient object (the state).
Poor answers to this question…
failed to recognise that Article 38 provides no definitive answer to the question as
asked. Some failed to observe the difficulties inherent in opinio juris.

Question 52016/B
‘The sources of international law are not static, and continue to evolve.’
Consider this statement with reference to Article 38 of the Statute of the
International Court of Justice.
General remarks
The purpose of this question is very different from the use of Article 38 in Question
2. What is required here is an understanding of the limitations of Article 38.
Law cases, reports and other references the examiners would expect you to use
Apart from Article 38 itself, familiarity with discussions of its adequacy contained in
both the subject guide and the textbooks was essential.
Common errors
Although there were errors, they were not common. Some failed to understand the
relevance of the limited application of Article 38, others did not apparently
understand what this limited application implies.
A good answer to this question would…
have begun by observing that Article 38 of the Statute of the ICJ does not provide
an authoritative list of sources of international law for all purposes but only for the
ICJ. Put another way, Article 38 directs the ICJ as to the sources of international
law that it is to apply. Nevertheless, it is usually taken as at least the starting point in
a discussion of sources of international law generally. Its content precedes that of
the Statute and repeats the provision for the preceding Permanent Court of
International Justice more than 90 years ago. Thus it is clear that, as far as the ICJ
is concerned, the sources are static but may be modified if there have been
changes to the (for instance) means by which customary international law is created
or evidenced.
One major new ‘source’ that does need to be discussed is resolutions of the
General Assembly, especially if these are unanimous or nearly so. However, it can
be argued that this is not a new source but rather may provide the opinio juris
necessary to establish customary international law. The ICJ has made it clear that
for this to be the case there will be no room for inconsistent voting by member
states (see Legality of Threat or Use of Nuclear Weapons). On the other hand, on
occasions the ICJ has used GA resolutions to help define ‘aggression’ and
customary rules on the non-use of force.
The question as to whether unilateral acts or pronouncements by states may ever
create international law should also be addressed.
Poor answers to this question…
demonstrated little knowledge or understanding of the issues.

This question requires discussion on the Article 38 of the International

Court of the Justice, serving as a focal point for sources of the
international law, this essay will demonstate that article 38 is not a
complete reference point for the sources of international law.

According to Article 38(I) of Statute of ICJ there are 4 sources of

international law. Article 38(1)of the ICJ divides the sources of
international law into those of a primary and secondary nature. The
primary sources, which the Court will consider in its decisions, include
conventions (or treaties), customary law, and general principles
recognized by civilized nations.
Article 38(1)(a) mentions treaties which signify written instruments in
which the participants (usually but not always states) agree to be
bound by the negotiated terms. Treaties may
be bilateral or multilateral. Treaties with a number of parties are more
likely to have international significance, though many of the most
important treaties (e.g., those emanating from Strategic Arms
Limitation Talks) have been bilateral. A number of contemporary
treaties, such as the Geneva Conventions (1949) have more than 150
parties to them.

Custom is main source of international law which evolved from

customary practices of states mentioned in Article 38(1)(b).
International custom is the earliest source of international law and
binding on all states. Customary rules of international law are the rues
which have been developed from long process of historical
development. It is possible to detect two basic elements in the make-
up of a custom. These are the material facts, that is, the actual
behaviour of states, and the psychological or subjective belief that such
behaviour is ‘law’.

General principles of the law recognized by civilized state is the third

source of the international law mentioned under Article 38(1)(c).There
are two views under this head. One is where; the general principles
which are found in domestic jurisprudence can be applied to
international legal questions. And second is where; general principle of
law recognised by civilised state has emerged as a result of
transformation of broad universal principles of law applicable to all
mankind into specific rules of international law. The principle of law
becomes general principal of law only if it is recognised by the World
court and not if it is recognised by the domestic law of large number of
states. Such general principle of law is applied by the world court only
where there is no international custom or convention on the matter in
dispute. International Judicial decisions is not direct source of
international law and it is subsidiary means for the determination of
rules of law mentioned under Article 38(1)(d). Article 59 of the Statute
of International Court of Justice declares that the international court’s
decisions will be binding only between parties of the particular case
except the court itself.

Article 38 is incomplete in many respects. Conspicuously absent are the

role of the resolutions of the UN General Assembly and the Security
Council and an enumeration of what constitutes customary
international law and general state practice. In reality, states are bound
by jus cogens and erga omnes obligations, but nothing in the statutory
matrix explains the importance of these principles. The Article is also
silent on persistent objectors (states that object to a usage before it
becomes a custom), subsequent objectors (states that object to a
customary practice after the usage has evolved into a custom), and
their role in the evolution of customary international law. It makes no
mention of opinio juris (the principle that a state follows a custom
because it believes itself bound to follow it); it does not speak of how
many states must follow a practice in order for it to be considered a
custom; nor does it say how one may determine the existence of a
customary practice itself. The role of regional customary practice is also
excluded. The consequent complications are plenty, since states bear
the burden of proving that they are either bound or not bound by a
specific custom or practice.

The first external source of law applied by courts is Jus cogens norms,

also known as peremptory norms. Jus cogens operate as a form of
public order in that they protect the legal system from incompatible
laws, acts, and transactions. Some of the significant Jus cogens norms
include the prohibition of genocide, torture, a ban on slavery, the
prohibition of aggression, the right to self-determination, a ban on
piracy, and devestating cases of enviormental harm. Jus cogens hold an
authoritative status as an external source outside of article 38

International law is mostly considered as the soft law its agreements,

principles and declarations are not legally binding. UN General
Assembly resolutions are an example of soft law. Certain international
instruments are regarded as creating soft law due to the sheer number
of States that have ratified them. Perhaps, the better view is to regard
UNGARs as evidence of existing customary law, or of opinio juris, or of
the practice of States, depending on each case. The weight of the
evidence would be determined by considering all the relevant factors
surrounding the adoption of the resolution in question – the degree of
support for the resolution; whether or not that support was
widespread amongst ideologically or politically divided groups; the
intention of States in voting for the resolution as illustrated by the
debates; the form of words used, etc. This was seen in Texaco v Libya.
Prominent examples among these include the 1992 Rio Declaration on
Environment and Development, the 1975 Helsinki Final Act of the
Conference on Security and Cooperation in Europe, and the 1978 Bonn
Declaration on International Terrorism. The soft law mostly created by
UN resolutions again vindicate points that Article 38 is not only source
of international law.

Unilateral statements and declarations by state representatives can

create obligations under international law. These are described as
declarations of will made in public by an authority vested with the
power to do so; they are unilaterally binding on the state who makes
them and can be executed both orally and in writing. Unilateral
declarations can be made by ahead of state, a head of government and
ministers of foreign affairs, and other authorised officials. For example,
in the Eastern Greenland case (Denmark v Norway), the Court
interpreted the declaration of a Norwegian Foreign Minister as a
statement that was legally binding on Norway.
Interestingly, it can also be asserted that unilateral declarations can be
made a part of article 38(1) as a customary rule of unilateral promise.
But in order to legitimise this, it is necessary to establish that unilateral
declarations comply with the facets of customary law. To identify a
customary rule, the elements of state practice and opinio juris need to
be established.
To sum up, it can be argued that Article 38 does not provide an
exhaustive statement of the sources of international law, jugen cogen
norms, UN resolutions and universal resolutions also act as sources of
international law.

2017-B/NIL

2018-B/nil

2019B

Question 2
‘The accepted sources of international law illustrate the distinctiveness of the international legal
system from domestic law.’
Discuss.
General remarks
This should have been a reasonably straightforward question for students familiar with Chapter 3 of the
module guide (and the recommended reading), which considers the sources and methods of international
law.
Law cases, reports and other references the examiners would expect you to use
An obvious starting point to answer this question is Article 38 of the Statute of the International Court of
Justice. Familiarity with the status and limitations of the Article could also be expected.
Common errors
The most common error was to have simply provided an elucidation of the provisions of Article 38.
A good answer to this question would…
see that it might have been anticipated that many candidates would read this question simply as an
invitation to compare and contrast international law as opposed to domestic law. While this is an implicit
part of the question, better answers would have begun with a discussion of the sources of international
law with most good answers probably using Article 38 of the Statute of the International Court of Justice
as a starting point. While this is appropriate, its relevance to the question should have been qualified with
an explanation that Article 38 does not necessarily entirely reflect contemporary perspectives and
secondly that it is an instruction to the ICJ rather than a definition of the sources of international law for all
purposes. Its shortcomings should be alluded to. Some emphasis on international law being a law of
coordination rather than subordination was to be expected, meaning that its origins are to be found in the
consent coming from the states themselves.
Having described the role of treaties and customary international law, both other sources and ‘soft law’
could briefly be considered. This should enable the contrast to be made with domestic law with its
legislature creating statutes binding upon subjects and subject to interpretation by the courts. Some
mention might have been made of common law and stare decisis. In turn, this might relevantly have led to
a consideration as to whether, given the significant differences, international law might really justify its
description as a legal regime. Allusion to the views of John Bolton, discussed in Chapter 11, might
usefully have been made.
The conclusion might well reflect that of the quotation.
Poor answers to this question…
failed to move beyond a description of Article 38 and failed to show how the sources illustrate the differences
between international and domestic law.
This question requires discussion on the sources of the international
law in which we will have to discuss how sources of the international
law make it distinct from the municipal law. According to Article 38(I) of
Statute of ICJ (International Court of Justice), there are 4 sources of
international law.

Article 38(1)(a) mentions treaties which is known by a variety of terms

—conventions, agreements, pacts, general acts, charters, and
covenants—all of which signify written instruments in which the
participants (usually but not always states) agree to be bound by the
negotiated terms. Treaties may be bilateral or multilateral. Treaties
with a number of parties are more likely to have international
significance, though many of the most important treaties (e.g., those
emanating from Strategic Arms Limitation Talks) have been bilateral. A
number of contemporary treaties, such as the Geneva
Conventions (1949) and the Law of the Sea treaty (1982; formally
the United Nations Convention on the Law of the Sea), have more than
150 parties to them.In most civil-law countries, the adoption of
a treaty is a legislative act. The relationship between municipal and
international law varies, and the status of an international treaty within
domestic law is determined by the country’s constitutional provisions.
In federal systems, the application of international law is complex, and
the rules of international law are generally deemed to be part of the
federal law. For instance The Constitution of the United
States stipulates (Article VI, Section 2) that treaties “shall be the
supreme Law of the Land.” Treaties are negotiated by the president but
can be ratified only with the approval of two-thirds of the Senate.

Custom is main source of international law which evolved from

customary practices of states mentioned in Article 38(1)(b).
International custom is the earliest source of international law and
binding on all states. Customary rules of international law are the rues
which have been developed from long process of historical
development. It is possible to detect two basic elements in the make-
up of a custom. These are the material facts, that is, the actual
behaviour of states, and the psychological or subjective belief that such
behaviour is ‘law’. When it comes to role customs in municipal law then
the United Kingdom takes an incorporationist view, holding that
customary international law forms part of the common law. British law,
however, views treaties as purely executive, rather than legislative,
acts.The same principle applies in other countries where the English
common law has been accepted. Although the incorporationist view
regards customary law as part of the law of the land and presumes that
municipal laws should not be inconsistent with international law,
municipal laws take precedence over international law in cases of
conflict.

General principles of the law recognized by civilized state is the third

source of the international law mentioned under Article 38(1)(c).There
are two views under this head. One is where; the general principles
which are found in domestic jurisprudence can be applied to
international legal questions. And second is where; general principle of
law recognised by civilised state has emerged as a result of
transformation of broad universal principles of law applicable to all
mankind into specific rules of international law. The principle of law
becomes general principal of law only if it is recognised by the World
court and not if it is recognised by the domestic law of large number of
states. Such general principle of law is applied by the world court only
where there is no international custom or convention on the matter in
dispute. Whereas, general principles of the law applies in state in every
circumstances wherever they are applicable, general principles in
municipal legal system does not require authorization of the domestic
court.
International Judicial decisions is not direct source of international law
and it is subsidiary means for the determination of rules of law
mentioned under Article 38(1)(d). Article 59 of the Statute of
International Court of Justice declares that the international court’s
decisions will be binding only between parties of the particular case
except the court itself. However, ordinary court does not deviate from
its earlier decisions and can change its earlier decisions only in very
special circumstances. Hence the limitation is ICJ is very limited as
compare to courts in municipal law.

Having discussed the sources and their distinct character vis-à-vis

municipal law, now we will analyze how article 38 is playing role into
dintinct character of international law. Firstly, Article 38 restricts the
evolution and applicability of legal principles to states as Article 38
continues to presuppose that international law deals with states alone.
It ignores all non-state actors, which have evolved as subjects of
international law today. Whereas domestic law, do deal with all matters
that comes at front of it. Secondly, the Article emphasizes a consent-
based legal system that hinges upon voluntary action, but in domestic
law we see more of coercion element in the law rather than consent.
Finally, the hierarchical arrangement of the sources themselves is
fallacious, but in domestic law we do see hierarchical order with
legislation on top. Besides, the ICJ is not the only international dispute
resolution body; there are plenty of tribunals, arbitration-based
organizations, and courts. With so many international dispute
resolution bodies, it is parochial to think that the ICJ has the last word
on the question of sources. Having discussed this we do know that
article 38 is not the final source of the international law, it needs
improvement as times are changed whereas we do see certainty of
domestic law that help to evolve rapidly to meet new challenges.
International Soft law also introduce us to distinct character of
international law. International law is mostly considered as the soft law
its agreements, principles and declarations are not legally binding. Soft
UN General Assembly resolutions are an example of soft law. Hard law
refers generally to legal obligations that are binding on the parties
involved and which can be legally enforced before a court, such
principles are mostly found in municipal law like legislations and
decisions by courts.

Concluding our discussion it can be said sources of the international law

plays pivotal role to distinguish it from municipal law, whereas these
sources are not exhausted, as they need improvement with change
times.
2020-B
2. Explain the meaning and discuss the significance of “soft law” in international law.

2021-B
3. Does Article 38 of the Statute of the International Court of Justice provide an
exhaustive statement of the sources of international law?

RESIT

2016
3. How important is ‘soft law’ in an evaluation of international law?

2017-Nil

2018- nil

2019-nil

2020-Nil