Judge Christopher Greenwood (ICJ)

Sources of International Law

Where does International Law come from?

How are new rules of International Law made?

If we were asking where does the law of the particular country come from, it would be a very
easy line of inquiry

-Constitution (of state)

-Code (if country has Civil or Criminal Code)
-Acts of its Parliament
- Decisions of Courts

International Law has NO Parliament and Constitution.

Court? YES.
- International Court of Justice
- Hague
But the court has only restricted jurisdiction and decisions made are NOT BINDING in Future
cases. The result is International Law is made in a largely decentralized way, quite different than
anything you find in any particular country.

Made in effect largely by what 192 states in the international community do in their dealings with
one another, in their dealings with individuals, and in the relations they have with international
organizations. Like the United nations.

International law is made by what states do, and not by what professors say.

A starting point to figure out where international law comes from is article 38 Of the statute of
the international court of justice. It tells the international courts What it has to apply In deciding
the disputes that are put before it. It identifies 5 sources:

1. Treaties between states;

2. Customary international law;
3. The general principles of law recognized by civilized nations;

Subsidiary means only:

4. Judicial decisions; and
5. Writings of the most highly qualified publicists.

Who are the most highly qualified publicists?

- Whoever is setting or marking your exam (joke)

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Judge Christopher Greenwood (ICJ)

Although the list provided above stated in article 38 Is often thought today to be inadequate In
various ways, it's as good a starting point as we get.

Discussion of ^

1. (2) Customary international law

- Oldest Among the sources
- The only one that generates rules that bind all states on a more or less automatic
basis
- Not a written source, Although always been written down after the event.
Unwritten law, unwritten rules, which evolved over time.
- Requires two elements :
A. Widespread and consistent state practice;
B. Practice has to be supported by an Opino Juris or “A belief in legal
obligation”

They have to do it because they believe they have a legal obligation to behave in this way.

● ICJ Decision in the North Sea Continental Shelf cases:” Not only must the acts
concerned be a settled practice, but they must also be such or be carried out in such a
way as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule requiring it.
● The states concerned must feel that they are conforming to what amounts to be a legal
obligation.

Need BOTH Elements to have Customary International Law.

Illustrated in the cases decided in the Permanent Court of International Justice sat in the Hague
between the 1st and 2nd world wars.

Case of SS Lotus
https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/
Turkey - Not entitled to try a French National for a crime that had taken place on a french ship
France argued that there is a Customary International Law Rule that Flag State has exclusive
jurisdiction over crimes committed by its nationals on board one of its ships on the high seas.

France succeeded in showing that states other than the flag states hardly ever prosecuted a
foregin national for a crime committed at sea. They were able to show a widespread and
consistent practice that states did not exercise jurisdiction over crimes committed by foreign
nationals on foreign flag ships.

What France was unable to show - belief in legal obligation.

France LOST case.

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Judge Christopher Greenwood (ICJ)

REMINDER: No CIL unless you can show Opino Juris and vice versa, cannot be based on
opinions - there has to be practice as well.

1996 advisory opinion of the Current International Court on whether it could use nuclear
weapons was taken into a long series of statements mostly in the form of general assembly
resolutions in which states have made clear that the use of nuclear weapons would be unlawful.
That the court said was Opinio Juris but by itself it is not a widespread and consistent practice
and is contradicted by other practice of states, the fact that a number of states possess nuclear
weapons that they and their allies would be able to use them in certain circumstances. What the
court found there is there is no sufficient state practice to generate a rule of customary
international law; prohibiting the use of nuclear weapons. You have to have both elements to
have a rule of custom - the trouble is neither of those elements are easy to understand When
you actually look at them a bit closer.

So far as practice is concerned, it is important to remember that practice is the whole of the
practice of the state, not as some people think, What the foreign ministry of that state does.
At least it's not just what the foreign ministry does. It includes what the states parliament does,
the legislation that it passes, and the decisions of its courts.

FOR EXAMPLE:
Suppose that one was looking at whether there was a rule of customary international law About
the control of fishing by a coastal state.

The practice of the coastal states would include:

1. Statements made by the government asserting control of the waters across the state;
2. Legislation passed by the parliament of that state ; (Fisheries Act)
3. Decisions of the courts in prosecution of foreign fishermen who were arrested for
breaking the terms of the fisheries act

The practice has to be seen as a whole, in its totality.

What happens when there is a variation on what states say and what they do?
- In the nuclear weapons case, the difference was fatal. But it won’t always work quite like
that.

Rule of customary international law that prohibits the use of torture.

- Very clearly established
- lots of courts have said over time that there is a complete prohibition on the use
of torture and that there is a customary international law rule to that effect.
- If one opens the reports each year for amnesty international for example, we see
that amnesty accuses a lot of states that are actually practicing torture whatever
they might say in public.

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Judge Christopher Greenwood (ICJ)

Where does that leave us if they're in fact widespread and consistent practice? I think that there
is for this reason : No state claims are right to carry out torture. They either say but what they
are doing isn't torture. Or they deny that they are doing it at all.

In those circumstances, the practice looks like this; a large number of states condemn torture
and don't practice it, and another group of states condemn it is a public but practice while
denying it. And a third group condemn torture that seek to show that what they are doing falls
within an exception to the rule against torture.

Now in those circumstances what you actually have is a consistent international condemnation
of the practice of torture - which is sufficient to give rise to the rule of customary international
law. In the case of nicaragua vs united states “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 a rule. And that instances of state conduct inconsistent with such rule should generally
have been treated as breaches of that rule not as indications of the recognition of a new rul.”

And that is the case with torture if it's discovered that a state is engaging in torture, everybody
condemns that state for violating the rule of international law. They Don't suggest that the law is
changing in any way. Then turn into Opino Juris - (ulit meaning) I have to say that the definition
stated before is entirely satisfactory. First of all, it's difficult to think of states - artificial
constructions as having “beliefs” at all, only a person can have a belief. Secondly, a number of
rules in international law are not in fact rules that imposed obligation at all, they are permissive
rules; rules that say that states may do this rather than they must not do that.

Customary international rule that evolved in the 1940s = that each coastal state had
sovereignty over the continental shelf, the seabed adjacent to its territory. Now, state practice
that gave rise to this rule is generally have thought to be started with the US President,
President Truman in 1946, but nobody would think that when President Truman said the US
sovereignty over its continental shelf, that he, or anyone else in the US believed that the US
was obliged to claim that sovereignty. What they were doing was asserting a right to it.
Moreover, if one makes too much of a belief of the state - then in effect the law can never
change. Because the only practice that would change it would be practice that would not be
supported by a belief existing in a legal obligation at all.

Opino Juris better definition = Practice would have to be supported by either an assertion of a
legal right or an acknowledgement of a legal obligation depending on the character of the rule
and that way it doesn't have to start inquiring into this artificial notion of what a state believes or
doesn’t believe.

Only if you have a sufficient dody of state practice, supported by Opinio Juris In the way that
was just suggested will a rule of customary international law evolve. Once it evolves, it binds all
states. EXCEPTION: If a state objects to an evolving rule of custom, and does so from before
that rule becomes law (Before it has sufficient state practice to be given legal status) then the
state in question is called a persistent objector and in effect contracts out of the rule of custom.

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Judge Christopher Greenwood (ICJ)

But that is difficult to establish and perhaps can only happen in practice in a small number of
cases.

2. (1) TREATIES (Conventions, Agreements, Exchanges of notes, Protocols)

- Agreement between two or more states or between a state and an international
organization it is binding on the parties to that treaty
● Usually it's not the act of signing a treaty that makes you a party to it, it's ratifying
that signature afterwards
● Moreover, A state that wasn't around when the treaty was signed or did not take
part in the conference that signed it, cannot sign it later, it has To accede in the
treaty.
So what matters is whether the state is a party in the treaty and not whether it is a signatory.

- Not a source of law at all, but a source of obligations under the law.

Why is a treaty binding?

- Because of pacta sunt servanda, “promises must be kept”.
- Which says that agreements and treaties are legally binding but that is a rather
theological distinction that does not have any real significance in practice.
- In practice, what matters is that treaties are sources of obligation for all states
that choose to become parties to them. But they they do not bind states that are
not parties, in that sense they are very different from customary law.
- Secondly, it's up to each state whether it chooses to become a party or not there
is no legal requirement for the states to become parties of the treaties.

Many treaties are also important as authoritative statements of customary international law.
Now, that can happen in many different ways the most obvious way is if a treaty sets out to
codify the existing unwritten law and a lot of the major treaties and international law (Vienna
Convention on International Relations) Are always intended to be codificatory. Strictly speaking
what binds states is not the treaty in circumstances unless they’re parties to it, it is the
underlying custom, the treaty is evidence of the customary law. Once you write down what was
previously unwritten, in practice, you change the rule. Because from that day onwards everyone
who is discussing that rule does so in the context of interpreting the words used in the treaty
provision.

Example: Vienna Convention on the law of treaties in 1969

Result of a very detailed study By the international law commission and the large international
conference but fewer than half the states of the world are parties to it. The importance of the
Vienna convention is that it is generally today, to be an authoritative statement at codification of
the customary international law on matters like treaty interpretation and every time there is
dispute about the interpretation of a treaty, references are made to it whether its technically
applicable to the states concerned or not. Even where a treaty provision is not intended to be
codificatory, it can become a statement of customary law, if after a period of time, practises
have come to crystalize around it.

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Judge Christopher Greenwood (ICJ)

NORTH SEA CASE - geneva convention about the continental shelves laid down rules about
the boundaries between adjacent states were to be extrapolated out into the seabed.

Germany never ratified the convention on the continental shelf, so the question when the case
went before the international court was whether the provision in article 6 of that Convention
which at the time, later on people thought differently and at the time was a requirement to apply
the equidecense rule, stated a rule of customary international law the court said that it didn't but
in hopes of dealing with this the court said that yes It could become a rule of custom if there was
a sufficient state practice accepting it. The Court made this remark “Although the passage of
only a short period of time is not necessary for all itself a bar to the formation of a new rule of
customary international law, On the basis of what was originally appealed in conventional rule.
An indispensable requirement the court says - would be that within the period in question short
that it may be, state practice including that of state's interest specially affected. Should have
been both excessive And virtually uniform in the sense of the provision invoked in other words if
states have all acted as though article 6 was binding upon them, then the rule and article 6
would have become part of custom, but there was no evidence that there was done that that's
why germany was successful.

If you have a conference in which most of the 192 states of the world are represented, And that
conference, by large majority or by consensus agrees on a particular treaty provision that is in
itself an important piece of state of practice and it would put us considerably impetus behind
that rule moving into customary international law.

3. GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS

- “All nations are civilized”
- Borrowed concepts common to most of the main national legal system
Barcelona Traction company case

- Won’t take The entire content of a particular national rule and simply transfer it,
sometimes you find lawyers have experienced it national rather than international.

- You have to show that the rule in question even though it appears in different names in
different countries, is essentially a principle common to all of the main states If you can
do that then you can bring it into international law.

4. JUDICIAL DECISIONS
- Why subsidiary?
There is no doctrine of binding precedent in international law.
- Does not directly create obligations to anybody.

Decisions of National Courts vs. Decisions of International Tribunals?

~ DIT - More persuasive as evidence of the content of international law than DNC.

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Judge Christopher Greenwood (ICJ)

The decision of a national court is not only in some areas at least persuasive evidence content
of rules of international law especially if it's a court with a strong reputation it is also a part of the
practice of the state concerned.

If you were looking to see what was the content of the customer international law rule on its
state immunity you would have to look at the decisions of national courts.

5. WRITINGS OF PUBLICISTS or JURISTS or ACADEMICS

- Does not create law at all

OTHER SOURCES
a. United Nations organs
- General Assembly
- Security Council

A. GENERAL ASSEMBLY
- Passes each year a number of resolutions which are specifically designed to
state the rules of international law on a particular subject
- Some of them purport to lay down rules of law
- Does not have any power to take binding decisions
Except relating to internal matters of UN Administration.

General assembly resolution is not equivalent to legislation.

Importance lies in this:
~ If a resolution is adopted unanimously or by consensus or even by a majority So that it
reflects widespread and consistent agreement and if those states consented to that resolution
was in deed stating existing international law rather than what the law ought to be in the future
then it would probably go a long way to meet the criteria of customary international law Of
widespread and consistent state practice coupled with opinio juris.

The critical test Is what states do outside the context of united nations contradicts the text of that
resolution there you might end up with a situation you had in a nuclear weapons case.

a. Is there sufficiently widespread and consistent state practice; and

b. is it supported by opinio juris

If the answer is YES then the resolution can have a very important effect in shaping customary
international law.

General assembly moves the treaty making process along.

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Judge Christopher Greenwood (ICJ)

B. SECURITY COUNCIL
- Can take binding decisions if it acts under Chapter 7 of the UN Charter and if the
language of the resolution is mandatory
- “States SHALL do the following”

- Does not set out to create “new rules” of general law.

HIERARCHY IN INTERNATIONAL LAW

Jus Cogens - “compelling law”
Peremptory rules in which no delegation is allowed.
- Prevail over any others.

● Treaty by 2 states allow genocide will be invalid because it will violate jus cogens.

For a rule to become Jus Cogens

a. One which achieved no universal acceptance, higher standard than required for ordinary
custom.
b. Higher level for opinio Juris
c. Accepted by states as a higher legal obligation

● If it meets criteria, it will be Jus Cogens

EXAMPLES:
● Prohibitions on Torture and Slavery
● Prohibitions on Genocide

Is there a conflict on Jus Cogens vs customary international law?

Prohibitions on torture doesn’t say where in particular it is to be tried or by whom.

Two matters one has to consider:

1. Treaties have a higher legal status custom…
- NOT strictly TRUE - Treaty prevails over CIL but only as between parties of a
treaty. Treaty cannot alter the rights and obligations of other states.
2. Art. 103 “Obligations under the charter prevail under the obligations of a treaty”
- Also prevail over CIL
- Obligations Charter creates are a very special character, it does not set down a
hierarchy in the formal constitutional sense.

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Judge Christopher Greenwood (ICJ)

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