SOURCES OF INTERNATIONAL

LAW 
 YOU WOULD LIKE TO WATCH THESE ON
SOURCES….
 https://www.youtube.com/watch?v=Ys3_49n7_KQ
 https://www.youtube.com/watch?v=9hnT_MX7Qsw
MUNICIPAL LAW
The Defendant, an Indian citizen, is accused
of committing murder of an Indian within the
jurisdiction of India.

Following will, as a general rule, not happen-

 The defence lawyer will not argue that the
accused is not bound by IPC though he
can argue about its non applicability in the
given situation .
 The Judge will not have to struggle to
identify which law will apply in this case
and
 he will not have to apply his mind to
establish that the particular law(here IPC
and provisions of murder) is binding on
the accused (because he is citizen of India,
committed offence in India, he is bound
by Indian law, the law is valid because it
has been made by the legitimate authority
etc)
 The judge will also not have to identify
the important elements of the law and its
conditions as the same is already laid out
in IPC. He will only need to a apply it and
at maximum interpret it.
 is
b y th d Lawyer of state B- Your
b ound ratifie his Honour, they (country A)
ot ve st t
) is n ou ha again are not bound by the
ta t e (A But y ation …’ treaty clause due to
s )? rv d
y our ethod d rese boun reservation but they are
sa y m i tt e no t definitely bound by the
y ou stance subm u are customary law…
o i o
e – ‘S equid have then y equidistance method is
g u
Jud se (eg oh yo hmm also a customary law
..
clau eaty! use…
t r cla
the

Judge (thinking)….. Hmm.. So finally we could

identify equidistance method in customary law
Lawyer of state B-’Your …let us apply it..but before that we must
honour, but equidistance ascertain its essential elements
method is no custom at
all…
Y our Honour, we are not
bound by this custom, as we
have been persistent
objectors’
MEANING OF THE TERM ‘SOURCES’

 The term sources in ‘International Law’ seeks to answer two important questions which remain
almost unnoticeable in municipal law (laws applicable within the jurisdiction of a state). These
questions are:
 Where does International Law come from?
 How is it made?

Do we ask these questions at the time of application of municipal law?

Generally, NO.
This is because we know very well where the municipal law is coming from and how it is made (eg.- Legislations
passed by the legislature having received assent of the President/Governor and notified in the gazette). These
processes of formation, repeal, adjudication of rules (executive, legislature, judiciary) is called as secondary
rules. These secondary rules are institutionalized, certain and identifiable in municipal law. Therefore nobody in
municipal notices these secondary rules though we all know that it is secondary rules which gives bindingness to
primary rules.
Note- Primary rules are the actual rules governing behavior of subjects (in municipal law, the individuals and in
international law, generally states)
 CONTINUED…
 However in International Law, we have already discussed that

 There is no structured system in the form of identifiable executive, legislature or

judiciary.  Therefore law making is a fractured diffused process  with no single body
to make law or enforce it or adjudicate. Secondary rules in International Law are
not certain
 The consequence is that ‘law’ needs to be discovered and ascertained in international
law depending on  from where it comes (eg.- treaty? Custom? General principles?–
these are made by states) and how it has been made (to ascertain if it can be called as
binding law or not) 
 CONTINUED...

Consequence of this uncertainty of secondary rules is that:

- Every time a dispute arises and a party relies on any rule claiming it to be law, the court has to
ascertain whether such rule is really a rule at all in international law

Eg.: Gabcikovo-Nagymaros Project case- whether there exists in customary law a rule of
automatic succession to a treaty by a successor state in case of dissolution of a state party to
the treaty or dispute and whether it is a rule binding on one or the other party to the dispute
 CONTINUED…
In order to ascertain if the rule is really a rule at all, the International adjudicatory body will have to look at
certain places and these places are called ‘sources’ in International Law. These ‘sources’, if we look
carefully, are therefore secondary rules of International law (rules laying down the process of formation
of international law)

The term ‘source’ highlights that :

 a rule must come from somewhere (valid authority or a process of validation as law)

 there is a flow, a process, which may take time- a rule may exist conceptually as a proposal or a draft and
later come to be accepted as binding.
 ARTICLE 38 OF THE ICJ STATUTE SUMMARISES SOURCES IN
INTERNATIONAL LAW
 Article 38 of the ICJ statute, summarises the sources of International Law:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted
to it, shall apply:
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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties
agree thereto.

Note- the significance of this enumeration is that by virtue of the underlined phrase above, only the
processes recognised herein are recognised processes of law making in international law and no the
process can therefore be relied upon to identify international law.

https://www.youtube.com/watch?v=iYrLbiH29G0
https://www.youtube.com/watch?v=0XwFiztemtI
MATERIAL AND FORMAL SOURCES OF INTERNATIONAL
LAW
NOTE - A LOT OF TIMES MATERIAL AND FORMAL SOURCE MAY BE ONE AND THE SAME
Material Source
 the actual content of the rule.
Example – the 1933 Montevideo Convention on the
Rights and Duties of States is regularly referred to for
convenient legal definition of a state and conditions it
must meet for that status to be acquired despite the fact
that that convention never came into force.
Formal Source
 confers the rule an obligatory character. Formal
sources are identified in Article 38 of the ICJ statute.
Example-
If a rule is laid down in a treaty, the treaty is at once
the material source and the formal source of that rule.
The rule may however, be taken over and applied in
the practice of other states not parties to the treaty in
such a way and to such an extent that it takes on the
character of a customary rule. For these rules the
material source would be the treaty but the formal
source would be international custom.
 IS THERE HIERARCHY OF NORMS IN ARTICLE 38
OF THE ICJ STATUTE?(MARIO PROST)
 History- During the drafting of Article 38, it was suggested that sources
listed in the provision should be considered in that specific order with treaties
prevailing over custom and custom prevailing over general principles. The
proposal was rejected.
 Note however that scholars do divide these sources in to
 Primary sources - (treaties, custom and general principles) standing as the only true sources of
law
 Secondary sources (judicial decisions and doctrinal writings)- to serve only the interpretation

and ascertainment of existing norms, lacking the ability to create rights and obligations.
IN ABSENCE OF EXPRESS HIERARCHY, SCHOLARS
DEBATE WHICH NORM IS SUPERIOR TO THE OTHER
Primacy of Treaty
 written character, precision, textual
determinacy, easier to locate, ascertain
and apply
 treaty rules lex specialis
 normatively superior to because of
ontological determinacy, practical
versatility, and process legitimacy.
 can be used for a variety of purposes from
the dramatic to the mundane
 superior to other sources as premised on
the principle of freedom of contract
Primacy of Custom
 Custom is superior because it is not dependent on any
other source to exist
 custom is the only process capable of producing law in
the proper sense of the term ie rules of general validity
applicable to the legal order as a whole and to all legal
subjects. (treaties only apply specific rules, to specific
parties in specific context, treaties are not sources of
law but mere sources of rights and obligations)
 is normatively superior (better) to other sources in its
ability to generate universally applicable norms, i.e.
norms which are binding on any and all States at once,
(no opt in by all states required to make customs
universal)
 Scholars have affirmed that custom is superior to treaty
in dealing with ‘global public good challenges’
 The Approaches taken by states with respect to primacy
depends on which serves their interest.

THIRD WORLD REJECTION OF CUSTOM

 Customs are supported by those who desire universality The third world states and scholars
reject customs because
and autonomy express relationship of domination and
inequality
 Treaties are supported by those who desire Determinacy
Custom anti democratic as it was
and consent based legitimacy . created in accordance with the needs
of the powerful

It makes prospects of radical

transformation bleak

Backward looking, conservative, static

Look at pg 58 and 59 of Malcolm

shaw – he discusses influence of big
powers on making of customary
international law.- correlation with
power
TREATY
 ARTICLE 38 (1)(A)

 International Conventions, general or particular, establishing rules expressly recognised by

the contracting states.’
 Treaties are considered the most important sources of International law by scholars who
emphasize on state sovereignty and centrality of consent in formation of International law
 They can be explained as transactions similar to contract wherein state parties participating in
it bind themselves legally to act in a particular way or have particular kind of relationship
with each other
 Treaties are called by different names but have one and the same meaning as defined in
VCLT 1969.
 The bindingness of the treaties come from a customary International Law pacta sunt
servanda (agreements are binding)
 Phenomenal increase in number of treaties due to functional expansion of International law,
increase in government control expansion of trade, communication, telecommunication,
movement of people, globalisation, outer space, international finance, medicine and disease
 KINDS OF TREATIES
Law Making Treaties Treaty Contracts

 Treaties which create legal obligations the one time

 Only between a few or more states
observance of which does not discharge the  Specific and local regulating limited
obligation are law making treaties.
 General and universal relevance- they create general issues within a limited set of states
norms, rules of conduct to guide the behavior of the  Eg. Indus Waters Treaty 1960
states in their international conduct- inter se and
generally.  Value of treaty contracts- a series of
 Almost universal participation of states in their
drafting
bilateral treaties containing similar
 Bindingness on all- due to universal participation, rule may be evidence of existence of
explicit acceptance by non members, declaratory that rule as customary International
character of provisions
 Examples- parts of UN charter, Hague Conventions law
1899, 1907, Genocide Convention 1948, Geneva
Conventions 1949, UNCLOS
 SOME OTHER KINDS OF TREATIES
 Constitutive treaties- treaties which create international organisations
 Regime creating treaties – treaties which create ‘regimes; and may extend to
non parties as well – example- the UN charter 1947 GATT
 BINDINGNESS OF TREATIES
 Treaties are binding on states who have ratified them (Pacta sunt servanda)
 Certain provisions of the treaty may be binding on states who may have not have
ratified it because these provisions may reflect customary law . Their bindingness
on such states comes not from the treaty but from customary International law .
(North Sea Continental Shelf Case)
 Certain provision of a treaty may not reflect customary international law but due to
extensive use of that provision by non members, it may subsequently evolve into
customary international law and become binding on non members, upon acquiring
sufficient state practice and opinio juris. (North Sea Continental Shelf Case)
 Where a treaty rule comes into being covering the same ground as a customary
rule, the Customary rule will not extinguish and continue its separate existence
(Nicaragua Case) (however note that the two rules may not be completely
identical and may be subject to different rules of interpretation and application)
 WHETHER TREATY CAN BE BINDING ON NON
PARTIES?

Treaties are not binding on non parties except-

Where benefit is conferred on a non party. This benefit cannot be withdrawn
without consent of the beneficiary
Objective regimes- UN charter imposes duty on non members (Article 2(6))
CUSTOMARY INTERNATIONAL
LAW
https://legal.un.org/ilc/guide/1_13.shtml
https://legal.un.org/ilc/reports/2016/english/chp5.pdf
 ARTICLE 38 (1) (B)
 Unlike in municipal law, in International Law, custom forms a very lively
and dynamic source of International law
 International custom as evidence of a general practice accepted as law.

 Usage- Usage is not custom, it is twilight of custom. Though like custom,

usage is also a general practice but unlike custom it does not reflect legal
obligation, These are practices followed out of comity of nations, neighborly
relations, friendship etc. They are neither articulated nor claimed to be
binding in nature.
 A custom is said to exist if evidence is adduced with respect to the following
 There is a general practice
 This general practice is accepted as law
 THE TWO ELEMENT TEST OF CUSTOMARY
INTERNATIONAL LAW

 A General Practice/ State Practice

 Opinio Juris Sive Necessitatis

 Note- Scholars have objected to this test. Some like positivists emphasize
that opinio juris is more important than state practice. Others have
emphasised only on state practice and have rejected the necessity of opinio
juris. However the ILC has supported the dual test approach.
 STATE PRACTICE
 State Practice is the material and detectable acts of subjects of International
law. It is the raw material of customary international law. It is the instances of
conduct ….‘web of precedent’ which shows the pattern of conduct.
 Asylum case- customary law must be ‘expression of a right appertaining to
one state and a duty incumbent upon other’

 Why state practice? Because states continue to be the primary subjects of

International law
 Who in the state? Executive, Legislature, Judiciary, officials, diplomats,
legal officers, officials
 What if there is a conflict between practices of executive, legislature and
Judiciary? Practice of the Executive
 STATE PRACTICE CONTINUED- WHERE TO LOOK
FOR?
 Manifestation of state practice – these state practices may not necessarily
confine to conduct within the domain of International relations. It would include
legislative act, any conduct or behavior of state, verbal, written physical actions,
diplomatic correspondence, policy statements, press releases, opinions of
government lawyers, executive decisions and practice, orders to military forces,
comments of government on ILC drafts, commentaries, national judicial
decisions (Scotia case), recital in treaties, international instruments, resolutions of
international organisations, official publications in international law, diplomatic
acts and correspondences, Acts of executive branch, practice of international
organisations, same provision in many treaties, internal memorandum of state
departments, resolutions of International organisations; historical records, official
manuals, opinions of national legal advisers, claims counter claims
 Note- Not possible to have an exhaustive list of material sources.
 STATE PRACTICE CONTINUED- SOME
CHARACTERISTICS
 Specially affected States- Due regard should be given to the practice of states whose
interest are specially affected. There is no rule that major power should participate
(North Sea Continental Shelf case)
 Inaction/Silence as state practice (acquiescence)- abstention is negative state
practice (acquiescence); it may amount to tacit consent. However, acquiescence must
be based on full knowledge of the rule. Failure to act in absence of knowledge does
not amount to acquiescence. (Anglo Norwegian G
 State practice must be taken as a whole- account of all available state practice must
be taken (eg- of all organs of state-conflict reduces weight around a state practice)
 Many a times even a respectable number of states adhering to a practice may not be
sufficient (North Sea Continental Shelf Case) sometimes, only a relatively small
number of states may engage in practice, yet inaction by others may create rules of
customary International Law (Akehurst)
 STATE PRACTICE CONTINUED- SOME
CHARACTERISTICS
 Uniformity of Practice – practice need not be in rigorous conformity with rule..it should
be in general consistent (Nicaragua Case); practice must be substantially uniform,
extensive, sufficiently widespread; participation in practice must be broadly representative
(North Sea Continental Shelf Case)- any remaining inconsistent practice will be marginal
(Villiger); uniformity among states practice is essential (Anglo Norwegian Fisheries case)
 Consistency of practice- the relevant practice must be consistent. While the specific
circumstances surrounding each act may naturally vary, ‘a core of meaning that does not
change’ common to them is required. It is then that the regularity of conduct is observed. The
practice must be comparable when same or similar issues have arisen (North Sea Continental
Shelf Case) (also relevant asylum case- constant and uniform)
 Some inconsistency is not fatal- complete uniformity of practice is not required.
Fitzmaurice- ‘too much account cannot be taken for superficial contradictions and
inconsistencies ((Nicaragua Case)
 Uniformity does not mean it must be in rigorous conformity
 STATE PRACTICE CONTINUED- SOME
CHARACTERISTICS
 Duration of practice- There is no specific requirement with respect to duration. The passage of only a short period
of time is not necessarily, in itself a bar on formation of a new rule of customary international law, what is required
is uniformity and extensiveness. (North Sea Continental Shelf Case) in some areas customs have evolved quickly
like space
 Non State Actors- NGOs and Individuals play an important role in promotion of international law and its
observance, their actions are NOT state practice
 State Practices and International Organizations –

- State practice here would mean practices of organizations in their relationship with states and other international
organizations.
 Statements made and vote cast at these forums by state representatives on legal matters. In order to be a state
practice, the practice should be of those organs of the organization which are composed of representatives of states
and not individuals in their personal capacity.
 Development of rules concerning internal law of these organisations, their powers and responsibilities, for eg see –
Article 27(3) of UN charter- custom that abstention be not counted as negative vote, Powers of GA especially
peacekeeping by reading Article 11 and 24 of UN charter.
 -actions of international organisations may also lead to the alteration of the existing rules or situation and in the
creation of new rules of international law. Eg –competence of ILO -1922- on the basis of practice of the
organisation the PCIJ held that comepetence of ILO extended to agricultural workers as well.
 OPINIO JURIS SIVE NECESSITATIS- WHAT DOES IT
MEAN? (FRANCOIS GENY)
 It is the mental, psychological element of customary international law.
 States are to believe themselves to be applying a mandatory rule of customary
international law ..in other words ‘feel legally compelled to perform the
relevant act by reason of a rule of customary law obliging them to do so.. Feel
that they are doing or forbearing from doing something out of a sense legal
right or obligation (North Sea Continental Shelf case, ILC commentary)
 Bodansky- It is this internal point of view through which regularities of conduct
may harden into a rule of law and which enables a distinction between law and
non law
 Lotus case- ‘only if such abstention was based on their being conscious of a
duty to abstain would it be possible to speak of an international custom.’
 North Sea Continental Shelf case- ‘..that a rule of law or legal obligation is
involved. (followed in Nicaragua case, Germany vs Italy
 OPINIO JURIS- DIFFERENT NAMES
 Different terms used for opinio juris by International Courts but they mean
same thing- feeling of legal obligation, belief that practice is rendered
obligatory by the existence of a law requiring it ; sense of legal duty;
recognition of necessity, conviction of necessity, a belief in respect due to
this long established practice; general feeling regarding the obligatory
character of the practice;

 ILC- believes that the term ‘accepted as law’ is better than ‘opinio juris’
( example- Right to Passage over Indian Territory Case- one of the first cases
in which ICJ elaborated on the methodology for ascertaining Customary
International Law )
 OPINIO JURIS – CHARACTERISTICS
 Interested States- Opinio Juris of the interested states has to be sought
(interested states would be states carrying out the practice or states in a
position to respond to it)
 Individual opinio juris or general opinio juris? General opinio juris-
acceptance by general consensus of states

 In order to decipher opinio juris practices motivated by following factors

should not be relied upon
- Those motivated merely by courtesy, good neighbourliness, political
expediency, convenience, tradition
- Those motivated solely by need to comply with a treaty they have ratified or
some other extra customary obligations.
 OPINIO JURIS CONTINUED
 Same practice may be evidence of both practice and opinio juris
 Mere adherence to a rule in itself is not sufficient to establish opinio juris- it
must have been adhered to due to feeling of obligation
 Considerable amount of time in itself does not in itself suffice to establish
existence of opinio juris
 Habitual and frequent character of act does not amount to proof of opinio
juris alone unless it is done due to feeling of obligation
 Inaction does not form evidence of opinio juris. It is relevant only for the
purposes establishing implied consent in acquiescence or toleration on the
part of the state concerned.
 Contardictory practice may evidence a lack of opinio juris
 MANIFESTATION OF OBLIGATION
 An express statement of obligation- statements by ministers/government
 Legal briefs before courts/tribunals

 Transmittal statements by which government introduce draft legislations in parliament

 Joint declarations of states through official documents

 An official statement or document submitted in multilateral conventions

 Diplomatic protests

 Inter governmental correspondences like memorandum froma diplomatic mission to the

minister of foreign affairs of the state to which it is accreditated- like notes of exchange
 Jurisprudence of national courts- but here the obligation must be reflcted to have arisen
from customary international law
 Official publications in the field of international law such as military manuals.

 Treaties and their travaux preparetoires- it must show that state regards the rule binding on
them irrespective of the treaty
 Repetitions of similar provisions in alarge number of bilateral treaties may
be evidence of ‘acceptance as law’
 Resolutions of deliberative organs of International Organisations such as
General Assembly and Security Council – opinio juris may be deduced from
the attitudes of states vis-à-vis such non binding texts that purport explicitly
or implicitly to declare the existing law, as may be expressed by both voting
on the resolution by joining a consensus or by statements made in
connection with the resolution. However, it is important to look into
circumstances surrounding such action. It is still not clear if voting for a law
declaring resolution is in itself conclusive evidence of a belief that the
resolution expresses legal rule. However, a series of resolution containing
consistent statement may indicate gradual evolution of opinio juris
 PERSISTENT AND SUBSEQUENT OBJECTOR
Persistent Objector Subsequent Objector

 A state may exempt itself from the  A state which objects to a

application of a new customary customary international law after
international law by persistent the custom has evolved into a
objection during norm formation binding rule.
(not after norm has evolved into
CIL)
Objection after this evolution does not
 Evidence of objection must be clear
excuse the state from bindingness
 The principle was recognized by of the rule.
court in Anglo Norwegian Fisheries
Case
 GENERAL CUSTOM LOCAL CUSTOM
General Custom Local Custom

 A local custom can come into

existence between a group of state
or even amongst two states which
can derogate or supplement general
custom.
 Asylum case

 Right to Passage over Indian

Territory
 INSTANT CUSTOM
 Customs which evolve in very short duration of time
 Consequently, they are not supported by very widespread extensive state
practice
 However, they reflect very strong opinio juris.

 These kinds of customs with less state practice but strong opinio juris which
evolve in a short duration of time are called instant custom (customary law of
state sovereignty over its airspace; non sovereignty over space route)
 Though these kinds of instant customs have been criticized, the fact remains
that in new areas of law, due to absence of state practice by virtue of newness
of the situation, contrary rules hardly exist.
 RELATIONSHIP BETWEEN CUSTOM AND TREATY
 A provision of treaty may evolve into customary international law and
maintain an identity independent of the treaty even though the two norms
may be identical in content. Therefore a state not bound by a treaty may still
become bound by the subsequently evolved customary international law from
any provision of such treaty if it did not object to it persistently at the time of
such evolution.(North Sea Continental Shelf case)

 A treaty may codify a prevalent customary international law. However, again,

even where a treaty rule comes into being covering the same ground as a
customary rule, the customary law will still maintain its separate existence
and will not be subsumed by the treaty. (Nicaragua case)
 RELATIONSHIP BETWEEN CUSTOM AND TREATY
-CONTINUED
 In case of conflict between treaty and custom, the first effort must be to
construe them harmoniously
 If they cannot be construed harmoniously, then the treaty being lex specialis
law, will over rule the customary law (S S Wimbeldon case)
 However, Bederman and Keitner has following to say

 ‘ it is vital to keep in mind that custom and treaties are co equals sources of
international law there is no inherent hierarchy between them. This can lead
to inconsistent obligation under equally binding sources of law.’ (eg.: US
successfully opposed British practice of stopping US ships and detaining
German Nationals- here US relied on customs against UK who had argued on
basis of network of treaties)
 RELATIONSHIP BETWEEN CUSTOM AND TREATY
-CONTINUED

 Jus Cogens- peremptory rules of custom that may not be abrogated by treaty
– provisions in a treaty which violate jus cogens are void. Such provisions
may also become void, if subsequent to their formation, a jus cogens in
conflict with such provisions evolve.
 YOU MAY FIND THIS VERY HELPFUL…
 https://www.youtube.com/watch?v=m4mmYbPv9WY
 https://www.youtube.com/watch?v=pbtjqrIoDMA

 https://www.youtube.com/watch?v=se2jXi8btcY

 https://www.youtube.com/watch?v=h5lu72s6dXI

 https://www.youtube.com/watch?v=LOpSEfv9tk0v

 ….AND a critique of Customary International Law here…

https://academic.oup.com/chinesejil/article/16/2/251/3867663
 A CRITIQUE OF CIL- ‘CUSTOMARY INTERNATIONAL LAW
AND THE THIRD WORLD: DO NOT
STEP ON THE GRASS’

 ‘current framework of CIL is based on an undemocratic law making process,

which has been shaped mostly by powerful states to the disadvantage of the
interests of developing countries. Despite being aware of this situation, the
Third World has been unable to fundamentally question or change this
scenario, as shown by the AALCO Special Rapporteur’s Report.’
 GENERAL PRINCIPLES OF LAW
https://legal.un.org/ilc/guide/1_15.shtml
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N19/100/93/PDF/N1910093.pdf?OpenElement
 ARTICLE 38(1) (C)
 The general principles of law recognized by civilized nations.
 They were created to avoid situation of ‘non liquet’ in international law.

 These are rules emanating from general principles guiding domestic legal
systems which may be applicable in international law, they may be
emanating from justice equity public policy.

 History of framing – In the committee of jurists that prepared the statute

there was no consensus on the significance of the phrase. Some had natural
law concept in mind (Belgium). Root and Phillimore (US and UK) regarded
these principles as rules accepted in the domestic sphere of all civilized
states.
 ARTICLE 38(1) (C) Eurocentric?

 Basis of this source

 Verdross, Fitzamaurice- supports this source as based on Natural law

 - Tunkin (Positivists)- contest validity of this source unless states consent is

given
- Oppenheim view- the intention is to authorize the court to apply the general
principles of municipal jurisprudence in particular of private law in so far as
they are applicable in relations between states.’
 -Waldock- introduces flexibility in sources however it is limited in scope

 Generally, evidentiary, procedural principles from municipal law have been

adopted through general principles.
 SOME RECOGNIZED GENERAL PRINCIPLES
 Fabiani case- France and Venezuela- application of municipal rules for
assessing damages
 Russian Indemnity case- PCA applied principles of moratory interest

 Administrative Tribunal case- Res Judicata

 Movrommatis Palestine Concession case- general principles of subrogation

 Eastern Greenland case/ Temple of Preah Vihar case/Cameroon vs

Nigeria/ELSI case - Estoppel
 Gulf of Maine case- acquiescence and Estoppel

 North Sea Continental Shelf Case- equitable principles

 Barcelona Traction case- doctrine of corporate personality

 Charzow Factory case- obligation of reparation and estoppel

 CONTINUED..
 German settlers in Poland case- private rights acquired under existing law do not cease
on a change of sovereignty.
 Corfu Channel case- circumstantial evidence; Res Judicata

 Administrative Tribunals case/Genocide Convention/ - Res judicata

 AMCO vs Republic of Indonesia- damnum emergens, lacrum cessans

 - proportionality

 -pacta sunt servanda (at certain places it is mentioned as custom)

 Nuclear Test Case- Good faith (UN charter Article 2(2))- this principles rather underlines
existing obligations under international law rather than existing independently.
 Gabcikovo Nagymaros case- injuria jus non oritur

 Diversion of water from Muese case- Equity, Runn of Katch Arbitration, North Sea
Continental Shelf case, Tunisia Libya continental shelf case. Libya/Malta case; Burkina
Faso/Republic of Mali
JUDICIAL DECISIONS & JURISTIC WORK
Subsidiary sources of International Law
 ARTICLE 38 (1) (D)

 Judicial decisions are subsidiary sources of International Law. They are evidence of law.
 Article 59 of the UN charter provides that a decision of the court has no binding force except between the
parties and in respect of that particular case. In the Polish Upper Silesia case the court said the object of article
59 is simply to prevent legal principles accepted by the court in particular case from being binding on other
states or in other disputes
 Article 63 of the UN charter says if a third state avail itself of the right to intervention the construction given
to the judgment will be equally binding on the intervening third state. But on no other party.
 In practice however court strives to maintain judicial consistency by trying to distinguish the cases from one
another. In the process laws are created, than merely determining it. (Anglo Norwegian Fisheries Case,
Nottebohm, Reparation cases)
 The court uses reasoning of prior decisions to maintain consistency.

 Examples- In Exchange of Greek and Turkish Population case, the court referred to precedent afforded by the
Wimbledon case reflecting the principle that treaty obligations do not entail an abandonment of sovereignty.
 In Reparation for Injuries the court relied on a pronouncement in a previous advisory opinion for a statement
of the principle of effectiveness in interpretation of treaties.
 DECISIONS OF VARIOUS COURTS
 ICJ- Reparation case, Anglo Norwegian Fisheries case, Genocide, Reparation
 PCA, Mixed Claims Commissions- British American Mixed Tribunal, Alabama
Claims Tribunals, Island of Palmas, ICTY, ICTR, Behring Sea Fisheries
Arbitration- principles of territorial sovereignty, neutrality, state jurisdiction,
state servitude
 Regional Courts- example- ECHR –

 State Judicial Decisions- they contribute in two ways

 Weighty precedents- for example decisions of the prize courts of UK-

blockade, contraband;
 Decisions of state courts may lead directly to the evolution of customary
International Law
 Evidence of state practice of forum state
 JURISTIC WORK
 Teachings of most highly qualified publicists of various nations
 Historically, International Law was greatly influenced by scholars –especially during the
dominance of natural law
 With increase in positivist influence, importance of scholarly works declined.

 They are important for

 Elucidating the nature, history and practices of rule of law

 Stimulate though on values and aims of international law

 -point out defects of international law

 Inject element of coherence and order

 States consult juristic work and refer to them in their submissions

 Juristic work may have evidentiary value- example- Paquette Habana case

 Evidence of usage which may evolve into custom

 Help in deducing customary rules from coincidence or accumulation of similar usage in practice.

 Use- generally by Tribunals and national courts, not much by ICJ

OTHER POSSIBLE SOURCES
 OTHER POSSIBLE SOURCES
 Resolutions of General Assembly:
 The way states vote in general assembly and explanation given on such occasions
constitute evidence of state practice and state understanding as to the law
 Nicaragua Case- opinio juris requirement could be derived from the circumstances
surrounding adoption and application of a general assembly resolution
 Legality of threat or use of Nuclear Weapon- GA resolutions even not binding may
have normative value (opinio juris)
 Where a vast majority of states consistently vote for resolutions and declarations on a
topic, that amounts to a state practice and a binding rule may very well emerge
provided that the requisite opinio juris can be proved. (concept of right to self
determination, principles governing exploration of outer space )
 They may also be taken to be authoritative interpretation of the UN charter

 They speed up process of creation of customary international law

 OTHER IMPORTANT TERMS TO KNOW

       jus cogens (peremptory norms-  accepted and recognised by international

 Soft Law-  community of states as a whole....as a norm from which no derogation is 
permitted..... it can only be modified by a subsequent peremptory
 Jus Cogens-
norm ( fundamental values of international community) - norm of general
 Obligations Erga Omnes  international law- peremptory norms generally evolve from international
customary law – obligation erga omnes 
 38

treaties - Treaties
                             Customs
General
principles
Subsidiary
sources 

                                                            Soft law