ZAMBIAN OPEN UNIVERSITY

INTERNATIONAL LAW 1

LL321 ASSIGNMENT 2

BANJI KALENGA
21811816
0977335663

October 2020
1. INTRODUCTION

This essay is written in response to the assignment question: Write a comprehensive essay on
the sources of international law; and elucidate Zambia’s approach regarding the reception of
international law into is domestic legal system as stated by Judge Musumali in the case of
Sara Longwe v Intercontinental Hotels [1992/HP/765, pJ20].

2.0 SOURCES OF INTERNATIONAL LAW

The sources of international law include everything that an international tribunal might rely
on to decide international disputes. International disputes include arguments between nations,
arguments between individuals or companies from different nations, and disputes between
individuals or companies and a foreign nation-state. Article 38(1) of the Statute of the
International Court of Justice (ICJ) lists four sources of international law: treaties and
conventions, custom, general principles of law, and judicial decisions and teachings.
This list is no longer thought to be complete.1

Below are the sources of International law:

2.1 CUSTOM

Custom is the oldest source and the one which generates rules binding on all States.

In any primitive society certain rules of behaviour emerge and prescribe what is permitted

and what is not. Such rules develop almost subconsciously within the group and are

maintained by the members of the group by social pressures and with the aid of various other

more tangible implements. They are not, at least in the early stages, written down or codified,

and survive ultimately because of what can be called an aura of historical legitimacy. As the

community develops it will modernise its code of behaviour by the creation of legal

machinery, such as courts and legislature. Custom, for this is how the original process can be

1
Aust, A. (2005). Handbook of international law. (1st ed.). Cambridge, UK: Cambridge University Press. pp.5-6.

2
described, remains and may also continue to evolve. It is regarded as an authentic expression

of the needs and values of the community at any given time.2

Custom is a practice followed by two or more nations in the course of dealing with each

other. These practices can be found in diplomatic correspondence, policy statements or

official government statements. To become custom, a consistent and recurring practice must

go on over a significant period of time and nations must recognize that the practice or custom

is binding and must follow it because of legal obligation and not mere courtesy. Customs may

later become codified in treaties.3

A rule of customary law, for instance, requiring States to grant immunity to a visiting Head of

State, is said to have two elements. First, there must be widespread and consistent State

practice; states must, in general, have a practice of according immunity to a visiting Head of

State. Secondly, there has to be what is called “opinio juris”, usually translated as “a belief in

legal obligation; States must accord the immunity because they believe they have a legal duty

to do so.

A new rule of customary international law cannot be created unless both of these elements

are present. In the Case of the SS Lotus4 it was held that practice of a custom alone is

insufficient. In the Advisory Opinion on Nuclear Weapons5 matter, it was held that a rule

cannot be created by an opinion of law without actual practice. The International Court noted

in the Libya/Malta6 case, the substance of customary law must be ‘looked for primarily in the

actual practice and opinio juris of states’

2
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.72
3
Aust, A. (2005). Handbook of international law. (1st ed.). Cambridge, UK: Cambridge University Press. p.7.
4
[1927] PCIJ 10
5
[1996] ICJ 2
6
[1985] ICJ 13

3
Once there is sufficient practice together with opinio juris, a new rule of custom will emerge.

Subject only to what is known as the “persistent objector” principle the new rule binds all

States. The persistent objector principle allows a State which has persistently rejected a new

rule even before it emerged as such to avoid its application.7

In the Asylum8 case the Court declared that a customary rule must be ‘in accordance with a

constant and uniform usage practised by the States in question.’ In characterising the nature

of a customary rule, the court held that it had to constitute the expression of a right

appertaining to one state and a duty incumbent upon another. However, the Court felt that in

the Asylum litigation, state practices had been so uncertain and contradictory as not to amount

to a ‘constant and uniform usage’ regarding the unilateral qualification of the offence in

question.

The Court emphasised in the Nicaragua v. United States9 case that it was not necessary that

the practice in question had to be ‘in absolutely rigorous conformity’ with the purported

customary rule. The Court continued: ‘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 generally

have been treated as breaches of that rule, not as indications of the recognition of a new rule.’

International organisations in fact may be instrumental in the creation of customary law. For

example, the Advisory Opinion of the ICJ declaring that the United Nations possessed

international personality was partly based on the actual behaviour of the UN. The

International Law Commission has pointed out that ‘records of the cumulative practice of

international organisations may be regarded as evidence of customary international law with

7
Aust, A. (2005). Handbook of international law. (1st ed.). Cambridge, UK: Cambridge University Press. p.7.
8
[1950] ICJ 6
9
[1986] ICJ 14

4
reference to states’ relations to the organisations’. The International Court has also noted that

evidence of the existence of rules and principles may be found in resolutions adopted by the

General Assembly and the Security Council of the United Nations.10

States’ municipal laws may in certain circumstances form the basis of customary rules. In the

Scotia11 case a British ship had sunk an American vessel on the high seas. The US Supreme

Court held that British navigational procedures established by an Act of Parliament formed

the basis of the relevant international custom since other states had legislated in virtually

identical terms.

2.2 TREATIES

A treaty is an agreement between two sovereign nations or sometimes between nations and

international organizations.12

Strictly speaking a treaty is not a source of law so much as a source of obligation under law.

Treaties are binding only on States which become parties to them and the choice of whether

or not to become party to a treaty is entirely one for the State. A treaty is binding on those

States which have become party to it under a customary international law known as pacta

sunt servanda. This law requires all States to honour their treaties.13

A treaty which is freely negotiated between a large number of States is often regarded as

writing down what were previously unwritten rules of customary law. That is obviously the

case where a treaty provision is intended to codify of the existing law. A good example is the

Vienna Convention on the Law of Treaties, 1969. Whereas less than half the States in the

world are parties to it, every court which has considered the matter has treated its main

10
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.82
11
[1871] 81 U.S. 170
12
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.903.
13
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.829.

5
provisions as codifying customary law and has therefore treated them as applying to all States

whether they are parties to the Convention or not.14

The most basic kind of treaty is an agreement between two nation-states on matters of trade

and friendly relations. Treaties of friendship, commerce, and navigation (FCN treaties) are

fairly common and provide for mutual respect for each nation-state’s citizens in:

(1) rights of entry,

(2) practice of professions,

(3) right of navigation,

(4) acquisition of property,

(5) matters of expropriation or nationalization,

(6) access to courts, and

(7) protection of patent rights.

Bilateral investment treaties (BITs) are similar but are more focused on commerce and

investment. The commercial treaties may deal with a specific product or product group,

investment, tariffs, or taxation.

2.3 GENERAL PRINCIPLES OF LAW

General principles of law recognized by civilised nations are seldom mentioned in judgments.

They are most often employed where the ICJ or another international tribunal wants to adopt

a concept such as the legal personality of corporations which is widely accepted in national

legal systems. But international law seldom adopts in its entirety a legal concept from a

14
Aust, A. (2005). Handbook of international law. (1st ed.). Cambridge, UK: Cambridge University Press. p.7.

6
particular national legal system; instead the search is for a principle which in one form or

another is recognized in a wide range of national legal systems.15

Even without treaties, there would be some international law, since not all disputes are

confined to the territory of one nation-state. In The Bremen v. Zapata Off-Shore Co.16 a US

company’s disagreement with a German company was heard in US courts. The courts had to

decide where the dispute would properly be heard. In giving full effect to a forum-selection

clause, the US Supreme Court set out a principle that it hoped would be honoured by courts

of other nations; that companies from different states should honour any forum-selection

clause in their contract to settle disputes at a specific place or court.

General principles are most often employed where the ICJ or another international tribunal

wants to adopt a concept such as the legal personality of corporations. An example is in the

Barcelona Traction Co17. case which is widely accepted in national legal systems.

International law seldom adopts in its entirety a legal concept from a particular national legal

system; instead the search is for a principle which in one form or another is recognized in a

wide range of national legal systems.

In the matter of Germany v Denmark and the Netherlands18 the court held that ‘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 a legal obligation.’

15
Bederman, D.J. (2002). The spirit of international law.(1st ed.). Athens,GA, USA: University of Georgia Press.
p.29.
16
[1972] 407 U.S. 1
17
[1970] ICJ 1
18
[1969] ICJ 1

7
2.4 JUDICIAL DECISIONS

There is no doctrine of binding precedent in international law. The Statute of the ICJ, (under

article 59) expressly provides that a decision of the Court is not binding on anyone except the

parties to the case in which that decision is given and even then only in respect of that

particular case. Despite this, the ICJ refers frequently to its own past decisions and most

international tribunals make use of past cases as a guide to the content of international law.19

The ICJ itself will closely examine its previous decisions and will carefully distinguish those

cases which it feels should not be applied to the problem being studied. However just as

judges in common law jurisdictions, for example, create law in the process of interpreting it,

so the judges of the International Court of Justice sometimes do a little more than merely

‘determine’ it. One of the most outstanding instances of this occurred in the Anglo-

Norwegian Fisheries20 case with its statement of the criteria for the recognition of baselines

from which to measure the territorial sea, which was later enshrined in the 1958 Geneva

Convention on the Territorial Sea and Contiguous Zone.

It does not follow that a decision of the Court will be invariably accepted in later discussions

and formulations of the law. One example of this is part of the decision in the Lotus case

(cited above), which was criticised and later abandoned in the Geneva Conventions on the

Law of the Sea.

2.5 WRITERS

Historically, of course, the influence of academic writers on the development of international

law has been marked. In the heyday of Natural Law it was analyses and juristic opinions that

were crucial, while the role of state practice and court decisions was of less value. Writers

19
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.110.
20
[1951] ICJ 3

8
such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were the supreme authorities of

the sixteenth to eighteenth centuries and determined the scope, form and content of

international law.21

The Statute of the International Court of Justice recognizes that international tribunals may

also refer to the teachings of preeminent scholars on international law. The ICJ, for example,

often referred to the scholarly writings of Sir Hersh Lauterpacht in its early decisions.

The writings of international lawyers may also be a persuasive guide to the content of

international law but they are not themselves creative of law.

2.6 OTHER SOURCES

The United Nations General Assembly has no power to legislate for the international

community; its resolutions are not legally binding. However, many of those resolutions have

an important effect on the law-making process. Some resolutions are part of the treaty-

making process, attaching a treaty text negotiated in the framework of the United Nations and

recommended to the Member States by the Assembly (this was the case with the Convention

against Torture). While it is the treaty which creates the legal obligation; and then only for

the States which choose to become party to it, the importance of the United Nations in the

process of creating that treaty need not be underestimated.22

The studies of international law produced by the International Law Commission for the

General Assembly, especially if adopted by the Assembly, may also have an important effect

on customary international law, even if they are not turned into treaties.23

3.0 SARA LONGWE MATTER

21
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.112.
22
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.114.
23
Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University Press. p.83.

9
The conventional understanding of international law sees its “legal” nature as deriving from

the consent of states to binding obligations. However, states have engaged in a host of other

normative commitments through means such as declarations and General Assembly

resolutions that, while not having the binding force of formal treaties, may still have law-like

consequences of the kind that the term “soft law” has been coined to describe. In practice, the

distinction between “hard” and “soft” law may become increasingly blurred over time.24 The

case below illustrates this in the Zambian context.

Sara H Longwe vs Intercontinental Hotels25 is a Zambian High Court case in which the

plaintiff sued the defendant, a hotel, for refusing to grant her access to a bar at the hotel on

the basis that she was not accompanied by a person of the male gender. Among the grounds

filed in the lawsuit was one that read as follows: Zambia has acceded to African Charter on

Human and Peoples Rights and to the UN Convention on the Elimination of All Forms of

Discrimination Against Women, where the behaviour of the hotel contravened articles 1-5 of

the former and article 3 of the latter. Furthermore, the Bangalore Principles of 1988, which

had been formulated by Commonwealth Chief Justices, had agreed on the relevance of

looking at principles which had been ratified by a government in an international convention,

even where this had not been domesticated into local law.

In response to this ground, the defendant responded as follows: The provisions in the cited

international conventions had no relevance since Zambia had ‘unfortunately failed to pass an

implementing statute’.

The court ruled in favour of the plaintiff based on the other grounds but chose to respond to

the ground of interest as follows: Before I end, I have to say something about the effect of

International Treaties and Conventions which the Republic of Zambia enters into and ratifies.

24
Armstrong, D. (ed.).(2009). Routledge Handbook of International law. (1st ed.). Oxon, UK: Routledge. p.68.
25
[1992] HP/765, pJ20.

10
The African Charter on Human Rights and People’s Rights and the Convention on the

Elimination of All Discrimination against women etc (ante) are two such examples. It is my

considered view that ratification of such documents by a nation state without reservations is a

clear testimony of the willingness by that State to be bound by the provisions of such a

document. Since there is that willingness, if an issue comes before this court which would not

be covered by local legislation but would be covered by such international document, I would

take judicial notice of that Treaty or Convention in my resolution of the dispute.

With these words the judge implied the binding nature of international treaties on judicial

officers even in the absence of local legislation domesticating the treaty. In essence the judge

was implying that a treaty once ratified by the government of Zambia was binding on its

citizens and impliedly on the courts. This ruling is supported by the principle of pacta sunt

servanda.

4.0 CONCLUSION

There is no single body able to create laws internationally binding upon everyone, nor a
proper system of courts with comprehensive and compulsory jurisdiction to interpret and
extend the law. Treaties and conventions, along with customary international law, are the
primary sources of international law. Article 38(1) of the Statute of the ICJ is widely
recognised as the most authoritative and complete statement as to the sources of international
law.

Nations are legally bound to honour treaties that they sign.

11
BIBLIOGRAPHY

BOOKS

1. Armstrong, D. (ed.).(2009). Routledge Handbook of International law. (1sted.). Oxon,

UK: Routledge.
2. Aust, A. (2005). Handbook of international law. (1st ed.). Cambridge, UK: Cambridge
University Press.
3. Bederman, D.J. (2002). The spirit of international law.(1st ed.). Athens,GA, USA:
University of Georgia Press.
4. Shaw, M.N. (2008). International law. (6th ed.). Cambridge, UK: Cambridge University
Press.

CASES CITED

1. Advisory Opinion on Nuclear Weapons [1996] ICJ 2

2. Anglo-Norwegian Fisheries [1951] ICJ 3

3. Asylum [1950] ICJ 6

4. Barcelona Traction Co [1970] ICJ 1

5. Case of the SS Lotus [1927] PCIJ 10

6. Germany v Denmark and the Netherlands [1969] ICJ 1

7. Libya/Malta [1985] ICJ 13

8. Nicaragua v. United States [1986] ICJ 14

9. Scotia [1871] 81 U.S. 170

10. Sara H Longwe vs Intercontinental Hotels [1992] HP/765, pJ20.

11. The Bremen v. Zapata Off-Shore Co [1972] 407 U.S. 1

12