TOWARDS A CRITICAL OVERVIEW OF THE SOURCES OF INTERNATIONAL LAW

BY
OMOJARABI WASIU FEMI
Ahmadu Bello University, Zaria
Kaduna State, Nigeria

ABSTRACT
The guiding principle of interstate relations is known as international law. It derives the contents of its
provisions from various origins known as sources. In order to give form and shape to the work, the work
is looked at from the legal approach. This paper takes a critically examination into the different sources
of international law, this was done by presenting what a particular source of international law provides
for followed immediately by rendering its shortcomings. The paper affirms that the sources do not exist in
isolation but in relation to one another. The paper therefore concludes that in the light of the
irredeemable criticism levelled against all the sources of international law, it is safer to refer to
international law as a moral suasion rather than law in its traditional sense.
INTRODUCTION
Law generally and international law specifically has been defined differently by different scholars
according to their perspective. In fact, it can be posited that law really lacks a definition but can be best
described base on what it does or what it is set to do. In formulating a particular law, be it municipal or
international, there are varied origins from where the provisions of the law are gotten; this is what is
referred to as the sources of law.
The sources of municipal law could be easily enumerated because of their noticeability; these include; the
legislature, the executive, the tradition / culture of the people and so on. However, for international law,
the origin from which the law emanated are not easily discernible because of the fluid nature of authority
in the international system and the absence of such structures available within nations like the legislature,
executive, police etc.
It is against this background that this paper takes a critical look at the sources of international law with
the task of presenting loopholes inherent in each of the sources. The legal approach is used as a
theoretical framework for the work. In doing that, this paper is divided into the introduction, theoretical
framework, and the sources of international law where each source is picked, discussed and followed by
the inherent shortcoming of the particular source. A general conclusion is then drawn from the
discussion.
THEORETICAL FRAMEWORK

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For the purpose of this work, the legal approach is applied to discuss the sources of international law.
This approach regards the state as the fundamental organization for the creation and enforcement of laws.
Therefore, this approach is concerned with the legal process, legal bodies or institutions, justice and
independence of judiciary. The advocates of this approach are Cicero, Jean Bodin, Thomas Hobbes,
Jeremy Bentham, John Austin Dicey and Sir Henry Maine.
The legal approach applied to the study of international politics, stands on the assumption that law
prescribes action to be taken in a given contingency and also forbids same in certain others situations; it
even fixes the limits of permissible action (Johari, 2011) Scholars of this approach posit that an organised
society is an ensemble of public law rights and obligations founded on a system of pure logic or reason.
SOURCES OF INTERNATIONAL LAW
Before going into a discussion of the sources of international law, it is beneficial to understand what is
meant by law and then international law. There are various definitions of law but for the purpose of this
paper, it will be define in the following ways: According to Hobbes (1651) “law is the formal glue that
holds fundamentally disorganised societies together” in other words, law is a cement that brings a
particular society into a common or single bond. To the English Jurist, John Austin, law is “a rule laid
down for the guidance of an intelligent being by an intelligent being having power over him” that is to
say, there should be a party having power over another party and capable of making rules that must be
obeyed by the other party. Thus, law is a formal mechanism of social control.

International law on the other hand is a body of rules established by a custom or treaty and recognised by
nations as binding in their relations with one another. Basically defined, international law is simply the
set of rules that countries follow in dealing with one another. There are different sources of international
law some to be discussed in this paper are; treaties, international customary law, General Principles of
law, judicial decisions, decisions of international organisations, text writers and the principle of jus
cogens. Before discussing each of these sources, it is important to quote the International Court of
Justice (ICJ) statute that listed what it recognised as the origins from which rules guiding countries will
emanate. This is quoted from Article 38(1) of the statute of ICJ which reads:

The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

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(a) International conventions, whether general or particular, establishing rules expressly recognized by
the contesting states;

(b) International custom, as evidence of a general practice accepted as law;

(c) The general principles of law recognized by civilized nations;

(d) Subject to the provisions of Article 59 judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Each of these sources shall be discussed as follows:

TREATIES
A treaty is an agreement creating binding obligations between subjects of international law (Umozurike,
1993). Treaty are of two types namely; bilateral/contract and multilateral/law making treaties. Treaties
are known by many other names like agreement, convention, covenant, charter, pact, memorandum of
Understanding, etc. They are the most obvious source of international law. A contract treaty is one that
merely regulates a specific relation between two or more states, such as; extradition law, transport
agreements, bilateral investment treaties, etc. A law making treaty on the other hand lays down rules for a
number of states. Some treaties have been quite successful because they have been ratified by most
countries. A good example is the Vienna Convention on diplomatic relations. Others suffer like the law
of the sea which was initiated in 1973 but took up till 1994 before it was ratified by only 60 states
(Schreuer, 1999).
SHORTCOMINGS
Despite being the most conspicuous of the sources, treaty is bedevilled by some fundamental
shortcomings. The first is that, even after entering into force, a treaty only binds those countries that have
given explicit consent to be so bound. Secondly, a treaty becomes weak if a powerful country ceases to
recognise the dictate of such a treaty. Another setback is that a state can attach far reaching reservations
which permits them to exclude or modify the legal effects of certain provisions of treaty; a good example
is the 1979 convention on the elimination of all forms of discrimination against women which was
ratified by many Arabian states but subject to far-reaching reservation. In the same vein, other states may
raise objections to a reservation made by one country thereby leading to legal battles and weakening the
effectiveness of treaty.

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Furthermore, the interpretation and application of treaties is complicated by different language versions
and the diverse social context under which lawyers operate. The ineffectiveness of the bilateral treaty as a
source is made obvious according to Schreuer (1999) in that “to create a network of bilateral treaties
among all 188 (sic) members of the United Nations, would require over 17000 such treaties” Similarly,
such treaties are likely to display variations and consequently do not create uniformity and equality of
treatment.
INTERNATIONAL CUSTOMARY LAW
Customs may be seen as the general practices of states that has become “constant and of uniform usage”
(ICJ Asylum Case Report in Umozurike, 1993). In essence, customary law emerges from patterns of
behaviour among states. Customs may be gleaned from the practice of states as in press conferences,
official statements, opinions of legal officials, official instructions to diplomats and so on.
SHORTCOMINGS
Custom emanates somewhat from consent of the complex international community and thus give it an
upper place in the hierarchy of the sources of international law but this notwithstanding, custom as a
source of international law is still marred by grave flaws. The first are a set of questions: how widespread
must this practice be? How long does it take to be established? How is one rule of international law
replaced by another such rule? These questions throw great doubt into customs as a source of
international law. Secondly, customs are often somewhat vague and open to conflicting interpretations.
Thirdly, if the perceived interests of certain states change, so will their attitude towards customary
international law and a particular rule may be challenged. This therefore leaves the rule of international
law at the mercy of the selfish national interest of states. Also, a custom may cease to exist through
desuetude or the rise of conflicting customary rule or conventional rule (Umozurike, 1993) Furthermore,
it is practically impossible to study the practices of all states so as to derive a universal customary law.
Moreover, countries custom is a product of their specific economic, social cum political milieu.
GENERAL PRINCIPLES OF LAW
This source of law under the statute of ICJ refers to general principles of law recognised by civilised
nations. The UN maintained that “the general principles of law recognised by civilised nations are certain
legal beliefs and practices that are common to all developed legal systems” It is similar to treaty and
customary law theoretically but in practice, they are used mostly to close gaps left by treaties and
customary law (Shaw, 1997). In essence, if there is a relevant treaty or custom, general principles do not
apply. According to Akehurst, (1993) they are called in to fill a lacuna in the law so that the court is not

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incapacitated from giving a judgement non liquet. A good example is the principle of “good faith” that
suggests that everyone intends to comply with agreements they make. Another is the principle of res
juticata which states that a breach of an agreement is followed by reparation in law and a party cannot
benefit from his own wrong-doing. Other principles include: that a party cannot be judge in his own
cause; pacta sunt servanda; the doctrine of Litis pendens
SHORTCOMINGS
The major drawback of this source is that there cannot be a universally acceptable principle of law. The
critics of this source are of the argument that with the global ideology divided between bourgeois and
socialist ideology, the systemic difference prevents the existence of common general principles. In fact,
Soviet writers argued that this category is used against socialist countries. Another powerful flaw of this
source is that it fails to define what is meant by civilised nations and the criteria that qualify a nation for
such a status.
JUDICIAL DECISIONS
This source of international law is similar to what under municipal law is called judicial precedence. In
international law, the decision of prominent jury also becomes a source of law. Repeated or frequently
cited decisions increasingly become, not merely evidence, but in fact create the law and form part of
international practice. However, the proviso for the application of this source is found in Article 59 of ICJ
Charter which clearly stated that a decision of the court is binding only on the parties and in respect of
that particular case. Under this provision, the decisions of arbitral tribunals are also respected and
referred to by the ICJ.
SHORTCOMINGS
Perhaps the only visible shortcoming of this source is that reference to this source only becomes valid
when the three sources above have been exhausted thereby relegating it to a second class source of law.
Similarly, the source only becomes acceptable when the parties to the suit agree upon it, anything short of
that makes it impossible to exist as a source of law.
DECISIONS OF INTERNATIONAL ORGANISATIONS
International organisations make rules that guide the operation of its activities as well as guidelines for
behaviour among its members. This therefore shapes the nature of interaction that takes place between
and among members of such organisations. With the increasing interdependence of states, many scholars
like Keohane and Nye (1989) are strongly of the view that this set of rules, guidelines and principle
operated by international organisations had become the grand law for relations among countries. They

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called this set of rules international regime. However, according to Umozurike (1993), “the resolutions
of international organisation do not independently constitute rules of law, but may be acted upon by state,
so as to become state practice or to be accepted as custom by states”
Decisions of international organisations contain generally binding rules for example; the regulations of
the European Community are comparable to domestic legislation. However, others like the Resolutions
of the General Assembly of the United Nations are but recommendations. This does not go to infer that
recommendations are not relevant; in fact recommendations are frequently relied upon in legal argument.
SHORTCOMINGS
Not all the decisions of international organisations are equally authoritative and a determination of their
legal significance often requires detailed analysis of such factors as the number of positive votes, which
countries voted in favour and so on. It is evident that the powerful countries usually dominate; for
example, the UN is dominated by the US and her allies. To complicate matters further, some bodies like
the United Nations Security Council will adopt binding decisions at times, such as resolutions imposing
sanctions on members. At other times, the Security Council will merely pass a recommendation calling
upon states to follow a particular course of action, like suggesting a form of dispute settlement though
both cases may be similar.
TEXT WRITERS
This constitutes one of the subsidiary sources of international law. The importance attached to the opinion
of any particular writer will depend largely on his prestige and the extent to which his opinion stands the
test of time. Writers like Grotius, Vittoria and Vattel were eminent when it comes to issues in
international law and so their writings were a great source of international law especially in early time.
SHORTCOMINGS
The major setback of this source is that over time, it is discovered that writers are usually influenced by
their own social environment. Sometimes, highly racial perceptions on issues are noticed in the writing of
scholars. Secondly, some of the writers were spokesmen of leaders that were overshadowed by
nationalism and a distorted world view. Thus, a careful perusal of some of the text of writers indicates
that their doctrines are frequently politically inspired. The drawback is also in the inability to come to a
universal interpretation of what legal issues should contain across shades of opinion among say Western,
Arabian and Eastern writers.

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 OTHER SOURCES OF INTERNATIONAL LAW
Other sources of international law worthy of mention are principles of equity, principle of morality, the
doctrine of jus cogen. The principles of equity and morality are natural principles which play out as
sources of law but because they are not incorporated into the statute of the ICJ they are treated as minor
source of law. The principle of equity suggests fairness, reasonableness and mutuality and in some cases
it has been applied by jurist like Judge Manley in 1935 in the Diversion of Water from the Meuse Case.
The problem with this source is that it depends hugely on the acceptance of the parties in the suit
anything short of their consent renders the source useless. The other is the principle of morality.
According to Fuller (1964), the existence of any society requires a substructure of law and morality, each
influencing the other and helping to develop it. A clear example is the slave trade which was rejected as a
result of what was termed “sin”, “repugnant to the principles of humanity and universal morality” and
“forbidden in conformity with the principles of international law” in the Treaty of Paris 1814, in the
Congress of Vienna 1815and in the Berlin Treaty of 1885 respectively. The application of this principle
however suffers the same setback as the principle of equity. Moreover, the interpretation of what is
morality is subject to controversy. A contemporary example would be the West’s call for the global
acceptance of the rights of gay marriage which to them is equity and the rejection of such a right by
African countries and the Arab world on the ground that it negates morality. The other source is the
doctrine of jus cogens that affirms that the need to uphold binding principles and basic values override all
lesser principles. In essence this principle makes it binding on parties to accept rulings based on existing
recognised general norms of international law. The primary shortcoming of this source is that a particular
norm can become out dated over time.
CONCLUDING COMMENTS
In the light of the above discussion, it is noteworthy to know that these sources do not exist in seclusion
but that there is a complete interaction among the sources. It is therefore quite incorrect to assume that
the sources exist in isolation that for example, certain issues are handled by treaty and another by the
principle of morality. Equally instructive is the point that international law is not a static system of rules
but rather a decision making process. In essence, a treaty for instance after being ratified is implemented
by international and domestic courts, it then becomes states practice, sometimes leading to new
customary international law and may ultimately be amended or abrogated by another treaty and so goes
the cycle.

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Finally, considering the weight of the irredeemable criticisms levelled against the very origin upon which
international law is built, the old argument of whether international law is actually law resurfaces and this
paper concludes by asserting that international law is better construed as a moral suasion rather than a
law in the strict sense.
REFERENCE
Akehurst, M (1976): The Hierarchy of the Sources of International Law
Fuller, L (1964): The Morality of Law
Johari, J.C (2011) Comparative Politics, New Delhi; Sterling Publisher
Keohane, R.O and Nye, J.S (1989): Power and Interdependence: World Politics in Transition, Third
Edition; Boston; Little Brown; pp. 3-32
Schreuer, C (1999): “Sources of International Law: Scope and Application” The Emirates Centre for
Strategic Studies and Research
Shaw, M.N (1997): International Law, Fourth Edition; London; Cambridge University Press; pp. 54-96
Umozurike, U.O (1993): Introduction to International Law, Ibadan, Spectrum Law Publishing; pp. 17-28
www.globalization101.com/international law