Introduction
The “phrase sources of law” and hence sources of International Law is ambiguous because it refers to both formal sources and material sources.
A formal source refers to the legal procedures and methods for the creations of rules of general application legally binding the persons or bodies at whom they are directed.
Material sources on the other hand provide evidence of the existent of rules which when proved have the status of legally binding rules of general application. In other words a formal source is that from which a rule of law derives its force and validity. The material sources supply the substance of the rule to which the formal sources give the force and nature of law.
For instance a rule will be legally binding if it meets the requirement of the custom which is in itself a formal source of International Law and each substance will be indicated by state practice which is the material source of the custom.
In the context of International Law however, we cannot talk of formal sources since International Law lacks the constitutional legislative machinery akin to that of Municipal law under which statutes are binding by reason of fundamental supremacy.
Traditionally the question of the material sources of International Law is answered by reference to Art 38 Para 1 of the Statute of International Court of Justice. This provision adopted from the same article of the statute of the Permanent Court of International Justice which operated under the auspices/support of Legal Nations provides that the court whose function is to decide in accordance with international law such disputes are submitted to it shall apply
a) International conventions whether general or particular establishing rules expressly recognized by the contesting sticks.
b) International custom as evidence of 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 various nations as subsidiary means for the determination of rules of law.
Article 59 provides that the decisions of the ICJ have no binding force except between the parties and in respect within that particular case.
Article 38 para 1 does not form the equivalent of municipal law of precedent. Article 38 para 2 the court is empowered to decide a case ex aequo et bono if the parties agree there to. The court can under this provision ignore rules which are the product of any of the above law creating agencies and substitute itself as a law creating agency depending on the agreements of the parties to the dispute before it. This is more practical. This enables the court to avoid the pronouncement of what is technically called a non liquet (Inability or impossibility to decide as no applicable rule has been found) this has never happened in practice.
The various sources enumerated by Art 38 of the statute may be applied simultaneously and as such the order of enumeration does not constitute a hierarchical order. Besides, the article is not exhaustive because on the one hand it envisages sources of International Law from a strictly jurisdictional perspective and on the other being a text adopted more than 80 years ago it does not take into account the evolution of International Law.
For instance acts and decisions of International organizations which have greatly contributed to the growth of International Law are not mentioned under the article. 1) TREATIES
Defn: A treaty is any international agreement entered into by two or more states or any other international law persons and governed by International law.
A distinction is normally made between law making treaties i.e. laws, treaties which lay down rules of general or universal application (multilateral treaties) and treaty contracts that is those that are entered into between two states dealing with a particular matter between or concerning those states exclusively (bilateral treaties).
Whether multilateral or bilateral, treaties is a direct source of rights and obligations for the parties and represents a source of international whose importance is ever increasing. In the event of a dispute between the parties to the treaty terms thereof will constitute the law to be applied by the court. Treaties may impose duties to enact legislation or may offer areas of choice within which states are to apply the principles laid down therein. There may also be either confirmatory of or represent a codification of pre existing rules of customary International Law such as the 1961 of Vienna conventions of Diplomatic Conventions.
States or other International Law persons are bound by treaties which have been regularly concluded and have entered into force states under the principle of Pacta Sunt Servanda. Under this principle parties to treaties are bound to observe and carry out the obligations in good faith. This principle which is in itself a rule of customary International Law is the basis of positive International Law upon which the entire superstructure of contemporary International Law depends. The function of treaties is however limited by two factors:
1) Treaties bind the parties thereto only and not non-parties. The legal position of non parties cannot be modified without their consent that is to say that legal rights cannot be conferred and duties imposed on 3rd parties without their consent.
2) This is provided by the principle of Jus Cogens. Under this principle the states freedom to conclude treaties is limited by the fact that parties to a treaty cannot provide in derogation from the accepted principles of IL. States cannot agree under treaty to violate the peremptory norms (can’t be derogated, they are binding)
For instance parties to a treaty cannot agree to wage war against a 3rd party or to engage in slave trade when these are prohibited by International Law.
2) CUSTOM
Is customs a source of international law?
Until recently the rules of general International Law were all customary rules. Although most of these still exist they have been modified so as to be adopted to the changes in contemporary International relations. The rules of customary International Law involved have a long historical process culminating their recognition by International community. For the custom to liberise/give rise to a binding rule it must have been practiced and accepted as obligatory by the international community.
State practice distinguishes between general and regional custom. General customs are those customary rules that bind the International community as a whole whereas local or regional customs are those applicable to a group of states or just two states to be a relation among themselves. If for instance members of the state of the International community are used to conducting their interstate affairs in a particular manner because they feel they are bound to do so will then this will develop into a local or regional customary law and cannot extend that practice to the international level or rest of Africa.
Elements of customary law
i) Duration (for how long must the custom be practiced)
The jurisprudence of International trade unions including the ICJ indicates that no particular duration is required for a particular practice to give rise to a rule of law provided the consistency and generality of the practice are proved. Conduct to be creative of a rule of customary law must be regular and repeated.
In the North Sea Continental Shelf cases, the ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to show that other requirements of a custom are satisfactory. The court stated, “although the passage of a short period of time is not necessarily, or of itself, a bar the formation of a new rule of customary IL on the basis of which what was originally purely conventional rule, and indispensable requirement will be that within the period within question short though it might be , state practice including that of states whose interest are specially affected, should have been both extensive and virtually uniform the sense of the position invoked- and should moreover have occurred in such a way as to show general recognition that a rule of law or legal obligation is invoked.”
ii) Uniformity and generality
Major inconsistencies in practice will prevent the creation of a rule of customary IL. However, complete uniformity is not required and minor inconsistencies will not prevent the creation of a customary rule provided that there is a substantial uniformity. In other words for state practice to give rise to binding rules of customary IL, that practice must be uniform, consistent and general and must be coupled with a belief that the practice is obligatory rather than habitual.
This is illustrated by the Asylum case which was between Colombia and Peru. After an unsuccessful rebellion in Peru in 1948, a warrant was issued for the arrest on a criminal charge arising out of the rebellion of one of its leaders Haya de la Torre a Peruvian National. He was granted asylum by Colombia in its Peruvian embassy in Lima. Colombia sought that Peru refused a safe conduct to allow Haya de la Torre out of the country. Colombia brought this case against Peru asking the court to rule inter alia that Colombia as the state granting asylum was competent to qualify the offence for the purposes of the said asylum. Colombia argued for such a ruling on the basis of both treaty provisions and “American International Law in general.”
The court pronounced, “the party which relies on a custom of this kind must prove that this custom is established in such manner that it has become binding on the other party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant uniform usage practiced by the states in question, and that this usage is the expression of a right appertaining to the state granting the asylum and a duty incumbent on the territorial state --- the facts brought to the knowledge of the court disclosed so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official use expressed on different occasions; there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some states and rejected by others, and the practice has been so much influenced by considerations of political expediency in various cases, that it is not possible to discern in all these any constant and uniform usage accepted as law.” (Colombia proved that this is a duty)
The generality of the practice is an aspect which complements consistency. The practice need not be universal in that what is important is that a substantial number of states practice or apply the custom.
iii) Opinio juris et neccesitatis sive
To assume the status of customary IL the rule in question must be regarded by state as binding in Law i.e. the states must regard themselves as being under a legal obligation to follow the practice. This sense of a binding legal obligation is referred to as Opinio juris et neccesitatis and is what distinguishes rules of customary IL from rules of International Committee which are simply based upon a consistent practice of state not accompanied by any feeling of legal obligation.
Article 38 Para 1 b
The statute of ICJ refers to custom as evidence of a “general practice accepted as law.” It must be proved that the state following a particular customary rule do so out a duty of binding legal obligation. The proponent of the custom has to establish a general practice and having done this in a field which is governed by legal categories the tribunal can be accepted to presume the existent of an opinion jurist. The distinction between International rules which create a legal obligation and those which simply permit a state to act in a certain way was illustrated by a Permanent Court of International Justice in the SS Lotus case between France and Turkey. A French steamer and a Turkish Collier collided on the High seas. As a result the Turkish collier sank and a part of its crew and passengers lost their lives. But the French steamer having been put into Court in turkey voluntarily the officers on the watch on board at the time of collision were arrested tried, convicted of involuntary man slaughter by the ruling authority of the flag state. France protested against the Turkish exercise of jurisdiction on the basis that this was in violation of the international law.
The question before the court was whether Turkey had the jurisdiction to try the French officers of a French Merchant ship for the collision. France argued that Turkey had no right to institute criminal proceedings because the flag state of the vessel alone had jurisdiction over act performed on board of the vessel on the High seas. Turkey argued in response that vessels on the high seas form part of the territory of the flag state and further that the criminal legislation of a sovereign state is not bound to keep within the limits of territorial and personal jurisdiction. It therefore, asserted that in the absence of a rule to the contrary there was a permissive rule empowering it to try the officers.
France however argued that there was a customary rule imposing a duty on Turkey not to try the officers because previous practice showed that, “questions of jurisdiction in collision cases are but rarely encountered in the practice of criminal courts---in practice prosecutions only occur before the court of the state whose flag is drawn. In rejecting the French argument the court stated, “ even if the rarity of judicial decisions to be found among the reported cases were sufficient to prove the circumstances alleged by the French government it would merely show that states, had often, in practice abstained from instituting criminal proceedings and not that they recognize themselves as being obliged to do so; for only if such abstention were based on their being conscious having a duty to abstain would it be possible to speak of an International custom. The alleged fact does not allow one to infer that states have been conscious of having such a duty.”
The court found that there was no customary rule conferring exclusive penal jurisdiction in matters of collision on the high seas on the flag state because state laws were inconsistent, decisions of municipal courts conflicted no uniform trends and would be deduced from treaties and publicists were divided in their views.
iv) Proof of custom In order for a rule of customary law to develop it must at some stage if possible to imply from the conducts of state that between them it is regarded as a matter of legal duty that they should act in a certain way. Such a rule will only attain the position of a rule of general international law if a sufficient number of states accept as binding of them and if the rest of international community does not register an effective protest to the extension of the rule of the conduct of relations in which they are involved.
Where a particular state or group of states persistently object to the rule being extended to it, that state or group will not be bound by the rule unless it is a rule of Jus cogens. In that case, the objections would amount to violations of international law. The standard elements of customary international law must be proved by the party ascertain of a particular rule of custom namely
1. Uniformity of state practice
2. Generality of state practice
3. The sense that state practice is mandated or compelled by law which may thus be reduced to two primary components namely
• The objective practice of state • The subjective belief motivating that practice
Customary International law is therefore created by the fusion of an objective element that is state practice and a subjective element that is Opinion Juris.
The country claiming existence of a rule of customary International Law has the burden of proving it. This is done by various evidentiary procedures such as views and resolutions of the UN general assembly, practice of states, conventions and decisions of International Tribunals in international legal disputes.
3) GENERAL PRINCIPLES OF LAW The statute of the ICJ allows the court to apply general principles of law recognized by “civilized nations.” The reference here is to the level of development of legal systems rather than economic or political status because all nations are now considered as civilized. The term “peace loving” as stated in Art. 4 of the UN Charter is now referent. (Fred Savage)
The general principles are not a subsidiary body of doctrine to which resort may be heard when all else fails since the article does not speak of them as such although it does so with respect to judicial decisions as a means for the determine of the rules of law. The general principles are those which are accepted by all nations in their domestic law systems such as certain principles of procedure; principle of natural justice; principles of good faith and the principle of res judicata.
Oppenheim states that the intention is to authorize the I.C.J to apply general principle of municipal jurisprudence in particular of private law in so far as they are applicable to interstate relations. In this way private law being in general more developed than International law has provided a reserve store of legal principles upon which International Law can grow. The inclusion of this provision in the statute of the court has therefore been seen as a rejection of the positivist doctrine according to which international law consists solely of rules to which states have given their consent and as affirming naturalist doctrine whereby if there appeared to a be a gap in the rules of International Law, recourse could be had through the general principles of law namely natural law.
Schwarzenberger states that for the principles to qualify for the incorporation into International Law, it must fulfill 3 requirements namely:
i) It must be a general principle of law as distinct from a legal rule of a more limited functional scopes;
ii) It must be recognized by civilised/peace loving nations as distinct from ‘barbaric or savage communities’; iii) It must be shared by a fair number of nations including the principal legal systems of the world, for example Anglo-Saxon or common law system.
Although general principles have been validly recognized as a source of International law they are rarely applied by International Court of Justice because the jurisdiction of the court is founded on consent of the parties in the dispute before it and the court is so much cautious of this fact that even if it is empowered to decide ex aequo et bono it rarely does so. The ICJ does not have compulsory jurisdiction it has to accept voluntarily. The ICJ cannot decide without the consent of the state. They can also with draw from the case.
4) JUDICIAL DECISIONS AND WRITINGS OF PUBLICISTS
After enumerating the 3 bodies/rules so far considered, Article 38 authorizes the court to apply judicial decisions and the teachings of the most highly qualified publicists as subsidiary means of the determination of rules of law. Article 59 of the statute provides that the ICJ’s decisions have no binding force except between the parties and in respect of that particular case.
This article was not intended merely to repress the principle Res Judicata but to rule out a system of binding precedent. The object of the article is to prevent particular legal principles accepted by the court in a particular case from being binding on other states or in other disputes. The reason for that is because the court has no compulsory jurisdiction and States must formally accept the jurisdiction of ICJ. There is therefore no binding authority of precedent of international law and international court and tribunal decisions do not make law.
Although in theory there is the barrier to the adoption of the doctrine of precedent, in practice the decisions of the ICJ are treated as having the highest authority. State parties to cases that come before the court frequently make reference decisions of various international tribunals. Even in practice, the court itself has of necessity followed previous decisions in the interest of judicial consistency and has where necessary distinguished its previous decisions from the case actually being heard.
For instance, in the Reparations of Injuries Suffered In the Service of the UN case 1949 ICJ report pg 174 the International court of justice in its advisory opinion to the U.N General Assembly relied on the previous pronouncement on the Permanent International Court of Justice to the International Labor Organization in 1926. On 17th September 1948 Count Bernadotte a Norwegian National was killed allegedly by a private gang of terrorist in the new city of Jerusalem; that part of the city was under Israeli control. Count Bernadotte was carrying out his duties as U.N mediator in Palestine.
In deciding upon the action to be taken in respect of the death, the U.N General Assembly asked the International Court of Justice for an advisory opinion on 2 questions. Namely
i) In the event of an agent of the U.N in the performance of his duties suffering injuries in circumstances involving the responsibility of a state, has the U.N as an organization have the capacity to bring an international claim against the responsible de jure or de facto government with a view of obtaining the reparation due in respect of damage caused to the U.N or victim or to person entitled through him?
ii) In the event of an affirmative reply how is action by the U.N to be reconciled with such rights as may be possessed by the state of which victim is a national?
In advising that the U.N had international legal personality with powers to claim reparation for damage suffered, the ICJ relied on the advice of the Permanent Court of International Justice to the effect that the International Labor Organization as a specialized agency of the UN was an International legal personality. Case no 33 Pg 5 Norwegian Case
In relation to writings, although writings of publicists only constitute evidence of customary law, learned writings can also play a subsidiary role in development of new rules of law. For instance the contributions of writers such as Hugo Grotius and Gentili were very important to the formulation and development of International Law. Besides, writers of International reputation such as Oppenheim are often relied upon by legal advisors to states, tribunals and courts.
However, much as the writings or teachings of the publicists might have been useful in the earlier development of International Law, today their utility is limited because much of contemporary International Law is now conventional law (treaty law). Besides, the writings have 2 main limitations namely:
i) Writers reflect certain national prejudices to the rules of International Law. For instance, the views of an American writer of a particular rule may be radically different from those of a Chinese or a 3rd world writer.
ii) Such juristic views may be the writer’s views of what the law ought to be (law de lege Ferenda) rather than what the law actually is (law de lege lata). There is therefore a danger of using proposals of a particular author for existing rules of International Law.
Are there any other sources of IL?
Article 20 (4)
Article 20 (5) Article 103
Does the UN make laws which are binding? The powers of the UN
OTHER SOURCES OF INTERNATIONAL LAW
As earlier indicated the sources of law enumerated in Art. 38 Para 1 of the statute of the ICJ are often regarded as comprising the sum of the traditional sources of International law. Increasingly however this approach is subject to limitation because International tribunals and courts do in the light of changes taking place in the international society look to additional sources to give them guidance on the law. These sources can in the circumstances be looked upon as additional sources of International Law.
Soft law
1) Resolutions, recommendations and declarations of the U.N General Assembly are often resorted to not only their persuasive value on international duties and obligations but also as evidence of political consensus on various International relations disputes. The resolutions may also have very significant influence on the subsequent development of International Law and practice.
For instance, in the Nicaragua v USA (merits) 1986 case the court considered that the U.N General Assembly resolution 2625 (XXV) (session of the Gen Ass) ‘the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States was illustrative of customary International law. Similarly in its advisory opinion on the Legality of the threat or use of Nuclear Weapons (1996 ICJ pg 90) the ICJ held that UN General Assembly resolutions can in certain circumstances provide evidence important for establishing the existence of a rule or the emergence of an opinion Juris.
In this case the Gen Assembly had asked the court for an advisory opinion on the question: “is the threat or use of Nuclear weapons in any circumstances permitted under International Law?” The court after a review of the relevant International legal instrument as well as the Security Councils’ General Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons will generally be contrary to the rules of International Law applicable to armed conflicts and in particular the principles and rules of humanitarian law.
2) Decisions of the U.N Security Council taken in exercise of the powers conferred upon it by the charter especially under chapter 7 are binding on states. This is based on the functions and powers of the security council as provided for under art 24 and 25 of the U.N Charter read together with art 103 which provides that in the event of the conflict between the obligations of the members of the UN under the charter and their obligations under any other international agreement, their obligations under the charter shall prevail.
3) In some instances unilateral declarations of states may give rise to binding international legal obligations. In such instances the intentions of the state making the declaration in question to be bound is crucial as will be the element of publicity or notoriety e.g. state officials including the president, minister of foreign affairs or the prime minister make declarations then they are binding to Kenya as a country.
Equally crucial will be the element of the good faith on the part of the state making declaration.
Siad Bare ending the Shifta war on Somalia by Kenya in 1981
1) The legal status of Eastern Green land case (Norway v Denmark) (1933) PCIJ rep Ser A/B No 53, the Ihlen Declaration was binding on Norway
After World War 2, Denmark sought to attain declaration for several of the allied powers to the effect that they would not object to recognize Danish sovereignty over the whole of Greenland. On July 14th 1918, the Danish Minister accredited to Norway and so Mr. Ihlen the Norwegian Minister for Foreign Affairs and told him that for the purpose of considering the claims that may be put forward by different countries, to an island called Spitzbergen at the Paris Peace Conference, Denmark would raise no objection to Norway’s claim upon Spitzbergen if Norway, raised no objections to Denmark’s claim over the whole of Greenland. Mr. Ihlen replied, “that question would be considered.” On July 22nd 1919 in a further conversation Mr. Ihlen made a statement to the Danish Minister to the effect that, “The Norwegian government would not make any difficulties in the settlement in this question.” Denmark sought to argue that the undertaking obtained in this declaration was binding upon Norway.
By Royal Proclamation of July 10th 1931 Norway declared part of Eastern Greenland to be under Norwegian sovereignty. Denmark also claimed this territory and applied to the Permanent Court of International Justice for an order to the effect that the declaration of occupation proclaimed by the Norwegian government of July 10th 1931 and any steps taken in this regard by the government constituted a violation of the existing legal situation and were accordingly unlawful and invalid. In giving judgement for Denmark as requested, the court said that, “the court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of its government in response to a request by the diplomatic representative of a foreign power in regard to a question falling within his province is binding upon the country to which the Minister belongs... it follows that as a result of the undertaking involved in the Ihlen Declaration of July 22nd 1919, Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole and ... to refrain from occupying a part of Greenland.”
2) The Nuclear Tests Cases (Australia and New Zealand v France)
The minister for defense goes to parliament and tells the French that they have reached a stage of atmospheric test. The President of France tell the UN gen assembly that France had reached a test Read article AB Rubin…
Complimentary Jurisdiction – the I.C.C is not part of the U.N system – provisions for the member states to bring the I.C.C into the system
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