2

Sources of international law

2.1 Introduction: sources and the nature of international law

2.1.1 Sources, States, and consent

Like all modern legal orders, understanding the inner workings of international law
requires reflection on certain basic questions: how do we know what is, and what is not,
law? How did a given legal rule come to have that status? Is there a person or a body
empowered to make, interpret, or change the law? In most national legal orders, there
is a central legislative organ that produces laws and regulations, or perhaps delegates
authority to administrative organs; there will additionally be courts or other judicial
bodies with the jurisdiction to interpret and apply that law. Because such institutions do
not exist in international law, at least not in the form recognizable to a national lawyer,
much ink has been spilt regarding the sources of international law. This is, in part, due
to the decentralized character of international lawmaking, but also perhaps to reinforce
the claim that international law is in fact a proper legal system.
Difficulties in explaining the sources of international law are compounded by the
fact that, as described in the previous chapter, the authority to develop international
law is generally regarded as deriving from the consent of States. This is not to say that all
international law is made by States; States frequently delegate lawmaking authority to
specific bodies or organs, and they may acquiesce or consent to a legal rule which origi­
nated in a non-State institution. In that light, it should be unsurprising that competing
theories have emerged which seek to ground international lawmaking in alternatives to
State consent, from community interests’,1 to considerations of humanity or democra­
cy,23or a wider social process which demands ‘fairness? Moreover, there are those who

1 C Tomuschat, ‘Obligations Arising for States Without or Against their Will’ (1993) 241 Recueil des Cours
195; B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des
Cours 219; G Abi-Saab, ‘Les sources du droit international—Un essai de deconstruction’ in E Jim6nez de Ar£-
chaga and M Rama-Montaldo (eds), Le droit international dans un monde en mutation (Fundacion de Cultura
Universitaria, 1994), 29.
2 See, e.g., A Peters, L Koechlin, T Forster, and GF Zinkernagel (eds), Non-State Actors as Standard Setters
(CUP, 2009); A Cassese, International Law (2nd edn, OUP, 2004), Part I; S Besson, ‘Theorizing the Sources of
International Law’ in J Tasioulas and S Besson (eds), The Philosophy of International Law (OUP, 2010).
3 See, e.g., T Franck, Fairness in International Law and Institutions (Clarendon Press, 1998).
 SOURCES OF INTERNATIONAL LAW 33

contend that international lawyers use sources inappropriately and that our ‘doctrine of
sources’ is in fact a formalist technique used to serve certain political interests,4 or those
who have pointed out the gendered and Eurocentric bias of how international law has
traditionally been made.5

2.1.2 Distinguishing formal and material sources of international law

It is important to set out a few preliminary concepts which may help to understand the
framework through which sources are commonly understood. One key distinction is
that between the formal and material sources of international law. Formal sources are
those methods for law-creation which are legally binding on their addressees and of
general application; these are generally regarded as binding due to the consent of the
addressee to them. Material sources are sources that are not legally binding, but may
provide evidence that sheds light on the existence of a legally binding rule. Material
sources can be found in a wide variety of instruments, ranging from a judgment of an
international court, a study of the International Law Commission (ILC), a resolution
of a political organ, or even a textbook on international law. The point is that material
sources can gather or compile evidence of a binding legal rule.6
Accordingly, after explaining some overarching points, this chapter will first address the
‘traditional’ formal sources of international law, treaties, custom, and general principles
(Sections 2.2.2-2.2.4), before turning to subsidiary or material sources of international
law (Section 2.2.5). Section 2.3 will then consider other potential sources, which have not
yet been universally recognized as such. These include the resolutions of international
organizations, codes of conduct emanating from civil society, final acts at high-level meet­
ings, statements of bodies that monitor treaties, and other forms of so-called ‘soft law’.

2.2 Article 38 of the Statute of the International Court

ofjustice

2.2.1 Lex arbitri or an authoritative general statement?

In a curious example which demonstrates the complexity of sources doctrine in inter­
national law, it is a provision of a treaty, in this case Article 38 of the Statute of the
International Court ofjustice (ICJ Statute),7 which is the traditional starting point when
speaking about international legal sources. Technically, Article 38 of the ICJ Statute

4 T Skouteris, ‘The Force of a Doctrine: Article 38 of the PCIJ Statute and the Sources of International Law’
in F Johns, R Joyce, and S Pahuja (eds), Events: The Force of International Law (Routledge, 2011), 68; D Ken­
nedy, ‘The Sources of International Law’ (1987) 2 American University JILP 1.
5 See H Charlesworth, ‘Law-making and Sources’ in J Crawford and M Koskenniemi (eds), The Cambridge
Companion to International Law (CUP, 2012), 187; A Anghie, BS Chimni, K Mickelson, and O Okafor (eds),
The Third World and International Legal Order: Law, Politics and Globalisation (Kluwer, 2003).
6 See R Jennings and A Watts, Oppenheims International Law (9th edn, Longman and Sons, 1992), vol 1,23;
and J Crawford, Brownlies Principles of Public International Law (9th edn, OUP, 2019), 21.
7 Statute of the International Court of Justice, as annexed to the Charter of the United Nations (26 June
1945), 892 UNTS 119.
34 THE STRUCTURE OF INTERNATIONAL LAW

only lays out the categories of sources to be applied by the ICJ: its lex arbitri (applicable
law). Yet, in practice, Article 38, which was transposed nearly verbatim from the 1922
Statute of the PCIJ,8 has long been regarded as the authoritative, complete statement
of the sources of international law.9 This is in part due to the incorporation of the ICJ
Statute into an annex of the UN Charter, a treaty ratified by virtually all States; but one
could also argue that Article 38, even though arguably dated, remains the focal point
for international lawyers, a convenient shorthand that furnishes guidance as to what is
generally acceptable international legal reasoning.10
Article 38(1) lays out a number of key points, foremost being that the ICJ’s function
‘is to decide in accordance with international law’;11 it enumerates the following sources
as being applicable:

a. international treaties (conventions), whether general (multilateral) or particular

(between a smaller group of States), so long as they establish recognizable rules;
b. international custom, as evidence of a general practice accepted as law’;
c. general principles of law ‘recognized by civilized nations’;
d. ‘subsidiary means for the determination of rules of law’, naming expressly judicial
decisions and the ‘teachings of the most highly qualified publicists of the various
nations’

Though treaties come first in the enumeration contained in Article 38, and are dis­
cussed in depth in Chapter 7, it is traditional to begin with the category of customary
international law, and for good reason: though more complex, understanding custom is
a key first step in understanding sources in international law more generally.

THEORY AND DEBATES Is There a Hierarchy of Sources in International Law?

A preliminary question must be asked of sources before turning to their substance: does a
hierarchy exist between them? Though Chapter 3 addresses the hierarchy of norms in inter­
national law, it is worth discussing the hierarchy of sources here.
The original design of Article 38 suggests that treaties, customary law, and general princi­
ples enjoy equality between them, but prevail over the subsidiary means of determining the
law. Article 38 does not distinguish between the three primary sources: they are equally capa­
ble of generating legal norms of comparable weight, and they overlap and coexist with one

8 (16 December 1920) 112 BFSP 317.

See, e.g., M Hudson, A Tribunal of Nations: The Permanent Court of International Justice 1920-1939
(Columbia UP, 1939), 601-12; Oppenheim’s International Law (n 6) 24, 44; M Sorensen, Les sources du droit
international (Munskgaard, 1946), 49; and C Rousseau, Droit international public (Sirey, 1980), vol 1.
10 GI Hernandez, The International Court of Justice and the Judicial Function (OUP, 2014), 30; see also
J d’Aspremont, Formalism and the Sources of International Law (OUP, 2011), 149. C/J Kammerhofer, ‘Uncer­
tainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’
(2004) 15EJIL523.
11 Article 38(1) is to be distinguished from Art 38(2), which allows for the Court to decide ex aequo et bono
(in accordance with equity); see Section [Link] for further discussion.
 SOURCES OF INTERNATIONAL LAW 35

another without any hierarchy (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States), Merits, ICJ Reports 1986, p 14, para 176).
If a conflict emerges between applicable legal rules, it can be resolved on the basis of guid­
ing principles such as general harmonization, or applying conflict-resolution techniques such
as lexspecialis derogat legii generali (‘specific rules prevail over rules of general application’) or
lex posterior derogat priori (‘more recent law prevails over an inconsistent earlier law’). When
compared with customary international law, treaty obligations are lex specialis, generating
more specific obligations between parties. Thus, a treaty may codify or depart from existing
custom; but equally so, new customary rules might emerge which depart from or add to an
existing treaty framework. Accordingly, should an inconsistency arise, it is to be presumed
that parties to a treaty were aware of the existing customary rule and have decided to exclude
its application. This occurred in Dispute regarding Navigational and Related Rights (Costa
Rica v Nicaragua), where the ICJ disregarded the possible application of customary law in the
presence of a treaty that completely define [d] the rules applicable’ to the situation at hand (ICJ
Reports 2009, p 213, para 36).
If there is any hierarchy of sources at all, it would be between ‘ordinary’ sources and the
category of what are called ‘peremptory norms’ or norms ofjus cogens. Under Article 64 of the
1969 Vienna Convention on the Law of Treaties (VCLT), any treaty which is in conflict with
such norms ‘becomes void and terminates’. Chapter 3 addresses these in detail.
For further reading, see the classic M Akehurst, ‘The Hierarchy of the Sources of
International Law’ (1974-5) 47 BYBIL 273; and ILC, ‘Conclusions of the Work of the Study
Group on the Fragmentation of International Law’, ILC Ybk 2006, vol II, pt 2, p 182 et seq,
especially conclusion 31.

2.2.2 Customary international law

[Link] Understanding the concept of 'custom'

People interacting with one another in a group, however small, tend to develop stand­
ards of behaviour to govern relations between them. These need not be written down,
but can develop through social practices which are gradually accepted as rules by the
members of the group. In more organized societies, such rules, embedded in social
practices, come to be regarded as a form of customary law’, a recurring interaction
among individuals and groups that is accompanied by the acknowledgement that such
a mode of interaction produces certain expectations of conduct that ought to be satis­
fied.12 A key feature of custom is that it does not emerge from a deliberative lawmaking
process, but rather, through the accretion of social practices of individual actors which
crystallize, often over a long period of time.13

12 R Unger, Law in Modern Society (Free Press, 1976), 49. See also DJ Bederman, Custom as a Source of Law
(CUP, 2010), for a comparative study of customary law across legal systems.
13 Hans Kelsen defined custom as ‘unconscious and unintentional lawmaking’: see H Kelsen, Principles of
International Law (Berkeley UP, 1952), 307-8.
36 THE STRUCTURE OF INTERNATIONAL LAW

To speak of customary international law’ is to recognize that the international prac­

tices of States can create new legal rules.14 Given the decentralized character of interna­
tional lawmaking, custom as a source of law gives prominence to the consent of States,
even if merely through a sort of tacit agreement, as a means for the creation of new
international law.15 In this respect, the evolution of custom is revelatory both of the
history and underlying nature of international law. Though, formally, the concept of
custom gives equal value to the practice of all States, it is accepted across the scholarly
spectrum that customary law analysis tends to give prominence to certain categories of
States, perhaps due to their influence, skill in international legal relations, or power.16
Moving beyond such charged ideological debates, practical questions abound as
regards how to identify a new rule of custom as a source of law. What exactly constitutes
the general practice of States, and how does it evidence customary international law?
How does one distinguish a general practice accepted as law from one which is merely
motivated by courtesy, tradition, or expediency?17 Given that a ‘State’ is not a sentient
being but a social construct consisting of governmental ministries, departments, agen­
cies, and, ultimately, individual officials, which evidence is determinative of a States
‘acceptance’ of a general practice as law? Finally, can a rule of customary international
law bind even those States which objected to it and, if so, how does this play out in
practice? These, and other questions, contribute to the enduring debate among interna­
tional lawyers about the role of custom within the international legal order.

2.2.22 The two elements of custom

The reference in Article 38 to ‘international custom, as evidence of a general prac­
tice accepted as law’ highlights two necessary elements: a material element relating
to the actual practice of States in their relations (traditionally called usus, ‘usages’);
and a subjective belief of States that such behaviour is ‘law’ (traditionally known as
opinio juris sive necessitatis, ‘an opinion as to law or necessity’). Traditionally, inter­
national lawyers follow this inductive approach: in Libya/Malta Continental Shelf, the
ICJ famously stated that customary international law is to be ‘looked for primarily
in the actual practice and opinio juris of States’.18 Though such an approach is not

H A number of key works on the place of custom in international law are listed in the Further Reading at
the end of this chapter. In 2018 the International Law Commission adopted a relevant set of conclusions on the
method of identifying custom: see ILC, ‘Draft Conclusions on Identification of Customary International Law,
with Commentaries’, ILC Report 2018, UN Doc A/73/10,122-56.
As was pointed out by D Anzilotti, Corso di Diritto Internazionale (3rd edn, Padova, 1928), vol 1,71-6.
A point lucidly made by H Thirl way, The Sources of International Law (2nd edn, OUP, 2019), 80-1; see
also the more radical critique in BS Chimni, ‘Customary International Law: A Third World Perspective’ (2018)
112 AJIL 1,24-5.
Crawford (n 6) 23 suggests that the term ‘usage’ can distinguish custom from non-binding practices. Acts
such as ceremonial salutes at sea, or the conferral of certain parking privileges to diplomatic officials, would
thus not be characterized as legal requirements but simply as a matter of‘international comity’.
*“ Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p 13, 29. The Court
would quote this passage approvingly in Jurisdictional Immunities of the State (Germany v Italy), Judgment, ICJ
Reports 2012, p 99,122-3. See further ILC, ‘Draft Conclusions on the Identification of Customary International
Law (n 14), Draft Conclusion 2; and M Lando, ‘Identification as the Process to Determine the Content of Cus­
tomary International Law’ (2022) 42 OJLS 1040, esp 1045-47.
 SOURCES OF INTERNATIONAL LAW 37

without problems,19 particular attention will be paid to the method used in ICJ judg­
ments which, even though formally merely a subsidiary source of law, are emblematic
of how, in practice, international lawyers regard the development of customary law.

THEORY AND DEBATES Elements of Custom: What Intensity is Required?

A long-standing debate between international lawyers concerns the duration, consistency,

and generality of practice and opinio juris required for a new customary rule to crystallize.
Historically, the passage of time was controversial, though today it is of lesser importance
provided that there exists a ‘constant and uniform usage practised by the States in question’
(Asylum case, 266; interestingly, the Court concluded that practice was so uncertain and con­
tradictory as not to constitute a customary rule). In Anglo-Norwegian Fisheries (at 131), the
Court added that a small degree of inconsistency does not prevent the emergence of a cus­
tomary rule when it is outweighed by a large amount of consistent practice. Similar reason­
ing has been adopted in other cases, including Icelandic Fisheries Jurisdiction, pp 23-6; and
Nicaragua (Merits), para 186. The ILC’s Draft Conclusion 8 on the Identification of Custom
suggests that any relevant practice must be general, sufficiently widespread and representa­
tive, and consistent; but that ‘no duration is required’.
In North Sea Continental Shelf (1969), the Court turned to the question of time, or dura­
tion, required for a new rule to crystallize:

the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was origi­
nally a purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and virtually
uniform (para 74).

The elastic criterion of‘duration’ is vividly illustrated by the emergence of newer technologies
which are quickly adopted by a few technologically advanced States. For example, in the 1960s
only the USA and Soviet Union were sufficiently capable of exploring outer space. Because of
Cold War politics and a fear that outer space could be militarized, virtually all States, through
a General Assembly resolution, commended the signing of the Outer Space Treaty by the two
superpowers, which bound them to regard outer space as a demilitarized zone. Bin Cheng
argued at the time that ‘instant custom* would be possible in such situations, as the opinio
juris is so strong that consistency of practice is not necessary for the creation of a new cus­
tomary rule (B Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International
Customary Law?’ (1965) 5 Indian JIL 35).
Today, one wonders whether the rapid pace of technological and scientific change in areas
such as global health law (especially the Covid-19 pandemic), climate change, or in cyber­
space, could also give rise to ‘instant custom*.

” See, e.g., Chimni (n 16) 27 who cautions that the ICJ, whether engaging in deductive, inductive, or
assertion-based analysis in respect of custom, does so ‘using western understandings of what is good for the
international community’; and for a broader analysis, J d’Aspremont, The Discourse on Customary Interna­
tional Law (OUP, 2021).
38 THE STRUCTURE OF INTERNATIONAL LAW

[Link] The requirements for a 'general practice'

Distilled to its essence, the notion of State practice encompasses the action or inaction
of States in their relations with each other, or in relation to recognized international
actors such as international organizations. ‘Practice’ is therefore a dynamic phenom­
enon: the actions of one actor may be accepted, tolerated, or rejected by other actors,
which may adopt a similar course of action. When examining State practice in relation
to jurisdictional immunities, the ICJ stated that:
State practice of particular significance is to be found in the judgments of national courts
faced with the question whether a foreign State is immune, the legislation of those States
which have enacted States dealing with immunity, the claims to immunity advanced by
States before foreign courts and the statements made by States.20

The actions of any of the States organs and agents, therefore, may constitute relevant
practice if the said action relates to the international field.21 The States actions can range
from an international act such as signing a treaty, to any number of internal executive
or administrative acts, the passing of legislation, and even the decisions of courts.22 It
must be said, though, that an issue arises if, within a State, different organs are engaged
in conflicting practices, as sometimes might happen if the judiciary takes a different
position to the executive branch.
Because custom is fluid, an intriguing question arises: where is the line drawn between
a State disobeying an existing rule and the first indication that such non-compliance
indicates the emergence of a new rule? When the ICJ considered the existence of cus­
tomary rules on the use of force in the merits phase of Nicaragua, it considered that
‘instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indication of the recognition of a new rule’.23 The
Court here identified the potentially contradictory character of inconsistent conduct,
which can be evidence that a new rule is emerging or simply a breach of the existing
rule. The key is the manner in which the inconsistent conduct is justified by the acting
State, and whether it is accepted or rejected by other States. The paradoxical situation
that conduct may be simultaneously unlawful, yet constitutive of a new legal rule, will
be further explored in relation to opinio juris.

20 Jurisdictional Immunities of the State (n 18) 123.

21 See Interhandel Case (Switzerland v United States), Preliminary Objections, ICJ Reports 1959, p 6, 27; and
(1950) ILC Ybk vol II, 368-72.
22 See also ILC, ‘Draft Conclusions on the Identification of Customary International Law’ (n 14), Draft
Conclusion 5; Draft Conclusion 6 provides an illustrative list of forms of relevant practice. See further Arrest
Warrant (Democratic Republic of the Congo v Belgium), Judgment, ICJ Reports 2002, p 3, 23-4, involving the
issue of an arrest warrant against a serving foreign minister of another State; and Nottebohm (Liechtenstein v
Guatemala), Second Phase, ICJ Reports 1955, p 4,22, on the conferral of nationality by decree.
23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ
Reports 1986, p 14, para 186.
 SOURCES OF INTERNATIONAL LAW 39

HISTORICAL BACKGROUND The Concept of a'Specially Affected State'and

the Role of Power in the Making of International Law

The particular relevance of certain States in the formation of a customary rule was recognized
by the ICJ in North Sea Continental Shelf, where the Court noted that ‘State practice, includ­
ing that of States whose interests are specially affected, should have been both extensive and
virtually uniform’ (para 74). A classic example of a ‘specially affected State’ would be that the
practice of States with actual coastlines, and not that of landlocked States, would be relevant
in the delimitation of maritime boundaries.
Historically, the doctrine of the ‘specially affected’ State has often reflected the asymmetri­
cal power relations between States, however formally equal they might be. In the nineteenth
century, the practice of Great Britain (as it then was) was indispensable in relation to the law
of the sea; and in the twentieth, it was the practice of the USA in relation to the law of armed
conflict, or that of the USA and the Soviet Union in relation to outer space. What is more, the
practice of Western States has regularly prevailed in matters of international economic law;
in particular, the law on foreign investment. As has been argued, being ‘specially affected’
may be used as a ‘respectable disguise’ by powerful States which ensures that their views are
always taken into account (see GM Danilenko, Law-Making in the International Community
(Nijhoff, 1993), 96; and the more recent, provocative BS Chimni, ‘Customary International
Law: A Third World Perspective’ (2018) 112 AJIL 1, esp 45-46).
A vivid illustration of the place of power may be found in the context of the 1996 Legality
of the Threat or Use of Nuclear Weapons advisory opinion. Several non-nuclear States argued
that the States actually possessing a nuclear arsenal, five of which occupy permanent seats on
the Security Council, were not specially affected and could not block the emergence of a new
customary rule. The Court did not take a position on this highly contentious point.
More recently, the Marshall Islands tried to challenge several declared nuclear powers for
having failed to disarm, but its claims before the ICJ were dismissed in 2016 due to the cases
being inadmissible (see, e.g., the ICJ’s 2016 decision in Obligations Concerning Negotiations
Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands
v United Kingdom), Preliminary Objections, ICJ Reports 2016, p 255). It remains to be seen
whether other issues of global collective concern to which certain States are disproportion­
ately exposed, such as sea-level rise or human migration flows, will give rise to new interpre­
tations of being ‘specially affected’.

[Link] Evidence of 'acceptance as law' (opinio juris sive necessitatis)

The second element for custom to crystallize, opinio juris, suggests a psychological ele­
ment on the part of the State as to its opinion on the legal status of a rule. The emphasis
on a psychological or mental state reveals the ancient origins of opinio juris in munici­
pal law, where an enquiry into the states of mind of individuals is more straightfor­
ward.24 Over time, a form of the concept has been accepted within international law.

u See Crawford (n 6) 26. The concept originated as far back as the writings of St Isidore of Seville, Etymo-
logiae, Liber V: De Legibus et Temporibus, reproduced in A Barney, WJ Lewis, JA Beach, and O Berghof, Tie
Etymologies of Isidore of Seville (CUP, 2010), ch 3, §§ 3-4: Custom is ‘... accepted as law when written law
is lacking: it does not make a difference whether it exists in writing or reason, since reason too commits to
law... Custom is so called also because it is in common usage*.
40 THE STRUCTURE OF INTERNATIONAL LAW

In the PCI J s Lotus judgment, it held that the act of abstention alone is insufficient: only
if such abstention were based on [a State] being conscious of a duty to abstain would it
be possible to speak of an international custom’25
The question of how exactly to determine what a particular State was thinking in
relation to a given action remains problematic. One possible solution is that of Sir
Hersch Lauterpacht, who suggested establishing a presumption that all uniform con­
duct by States was evidence of opinio juris unless the contrary was proven.26 Again,
it is probably evident that the very fluidity of the process by which customary rules
change and develop raises a paradox: if new rules depend on new practice and new
opinio juris, what does this suggest for the first State to depart from an existing cus­
tomary rule? The uncomfortable situation arises that conduct which is inconsistent
with an existing customary rule might simultaneously breach the existing rule and
serve as evidence that a new rule has emerged. One cannot dismiss the concern that,
with respect to customary international law, Taw breaking is an essential method of
law making’27

CASE SPOTLIGHT North Sea Continental Shelf (Federal Republic of Germany v

Denmark; Federal Republic of Germany v the Netherlands), Judgment, ICJ Reports
7969, p 3

A tremendously influential judgment of the ICJ concerned competing claims by Denmark,

the Netherlands, and then-West Germany over the delimitation of their respective continen­
tal shelves. The 1969 judgment came at a time of great evolution in the respective law on
maritime delimitation, and the 1982 United Nations Convention on the Law of the Sea was
still some years in the making.
All parties had been relying upon customary law. The Netherlands and Denmark argued
that the ‘equidistance-special circumstances principles’ rule in Article 6 of the 1958 Geneva
Convention on the Continental Shelf applied, even though West Germany had not ratified
the Convention. As the equidistance rule would have given the Netherlands and Denmark
a proportionally larger share of the continental shelf, West Germany opposed the claim that
this was a rule of customary law.
The Court agreed with West Germany, arguing not only that a treaty could not bind third
parties that had not ratified it, but also that Article 6 was not a crystallization of custom. In so

Though in Case of the SS ’Lotus’ (France v Turkey), Judgment, 1927, PCIJ, Ser A, No 10, p 28, opinio juris
was not acknowledged explicitly. The PCIJ there referred to the requirement that States refrain from a certain
act due to ‘recognizing] themselves as being obliged to do so’. See also ILC, ‘Draft Conclusions on the Iden­
tification of Customary International Law’ (n 14), Draft Conclusion 9, which suggests the practice must be
undertaken ‘with a sense of legal right or obligation’.
~b See H Lauterpacht, The Development of International Law by the International Court (CUP, 1958), 380.
See also A D’Amato, The Concept of Custom in International Law (Cornell UP, 1971), 74, who suggested opinio
juris required a claim of legality in advance of, or concurrently with, a given act or practice.
27 J Crawford and T Viles, ‘International Law on a Given Day’ in K Ginther et al (eds), Volkerrecht zwischen
normativen Anspruch und politischer Realitat. Festschrift fur Karl Zemanek zum 65. Geburtstag (Duncker &
Humblot, 1994), 45. See further, on this point, Thirlway, Sources (n 16) 94-6.
 SOURCES OF INTERNATIONAL LAW 41

doing, the Court made some canonical statements with respect to custom, and which acts are
relevant in assessing the existence of a customary rule:

Not only must the acts concerned amount to 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 of law requiring it. The need for such a
belief, i.e., the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis (para 77).

That highly influential statement is often cited by the Court itself (see, e.g., Nicaragua (Merits),
pp 108-9; or the more recent Ahmadou Sadio Diallo (Merits), paras 30-1). It also bears
emphasizing that the Court regards the two components of custom as closely intertwined:
acts of practice can be evidence of the existence of an opinio juris, and opinio juris—the belief
or state of mind that something is required by law—distinguishes the birth of a new rule from
a mere breach of an existing rule, even if the same act may be evidence of both.

It is for this reason that opinio juris is key in the formation of custom, and why the mere
existence (or absence) of practice does not determine what might constitute a custom­
ary rule. The better view, perhaps, is to recall the relational manner in which custom
develops, and to view opinio juris as a discursive, deliberative element which allows for
the rationalization of practice into something more coherent, which allows for develop­
ment to occur.28
More prosaically, such a deliberative element, at least between States, was observed by
the ICJ in the merits phase of Nicaragua, when faced with the question of how to deter­
mine whether there existed a customary international law prohibition on the use of force:
‘[r]eliance by a State on a novel right or an unprecedented exception to the principle might,
if shared in principle by other States, tend towards a modification of customary interna­
tional law’29 Put more simply, one State may assert a right, whether through its practice or
through its opinio juris, and other States affected by that claim may react by objecting to
the assertion of the first State, or by refraining from objecting. It is through the combined
interactions of all the involved States that the development of a new rule proceeds.30
Would it suffice for a State to be regarded as having acted mistakenly, believing a
rule to exist where there was none? The Court avoided responding to the question in
the 2012 Jurisdictional Immunities of the State judgment, in which Italy had asserted
that there existed a new exception to the customary law on immunity, based on the
practice of its own domestic courts (and, briefly, those of Greece). The ICJ rejected
the Italian claim after examining the contrary practice of other States, accompanied by

28 Chimni (n 16) 38-43, favours a post-modern’ approach based on ‘deliberative reason’ to opinio juris, rep­
resenting views beyond those of States, such as those in civil society, minority peoples, and social movements.
29 For technical reasons, the Court did not have jurisdiction to examine the US conduct in relation to the
United Nations Charter prohibition on the use of force: for further details, see Chapter 7, Section 7.3 (‘Reserva­
tions to treaties’).
w Thirlway, Sources (n 16) 72-3.
42 THE STRUCTURE OF INTERNATIONAL LAW

opinio juris, but did not take a view as to whether Italy’s view was justified or otherwise
appropriate.31 The Courts silence on the matter seemed sensible: it is one thing to reject
a States interpretation of the prevailing opinio juris, but quite another to accuse a State
of misrepresenting its own opinio juris wilfully and deceitfully.

HISTORICAL BACKGROUND Claims to the Continental Shelf

Though the law of the sea will be examined in Chapter 18, a classic example of how custom
can be made is how States began to claim sovereignty over the continental shelf after 1945.
Historically, States had only laid claim to land above sea level, and to a narrow strip of sea
adjoining the land; but, in 1945, US President Truman issued a proclamation to the effect that
the USA ‘regards the natural resources of the subsoil and sea bed of the continental shelf...
as appertaining to the United States, subject to its jurisdiction and control’ (1945 ‘Truman
Proclamation’, in 4 Whiteman Digest of Int L 756).
This novel US claim raised the question as to whether the USA was violating the freedom of
the high seas of other States, which provided that no part of the high seas could be subject to
a State’s jurisdiction. Presumably, had other States objected strongly to the US claim, it would
not have been accepted within international law. However, many States quickly formulated
similar claims to the adjacent continental shelf and its resources, including the UK (also in
respect of several Caribbean dependencies), as well as several States in Latin America and the
Persian Gulf. The US position became the first indication of a crystallization of a new custom­
ary rule. For a history of these claims, see SV Suarez, The Outer Limits of the Continental Shelf:
Legal Aspects of their Establishment (Springer, 2008), ch 2.
It was noted already by 1951 that such claims seemed to be ‘acquiesced in by the generality
of Powers, or at least not actively gains aid by them’ (see Petroleum Development v Sheikh of
Abu Dhabi, awarded by Lord Asquith of Bishopstone (1951) 18 ILR 144, 154). By 1958, the
Geneva Convention on the Continental Shelf (499 UNTS 311) was signed, in which it was
made clear that States could assert claims over their continental shelves; it would later be
recodified in the 1982 UNCLOS, and practice continues to develop the law. One can see, in
this illustration, how the novel US claim sparked a dynamic process leading to the emergence
of a new rule of customary international law.

A challenge in identifying opinio juris is the difficulty in identifying the relevant mate­
rials to infer its existence, as these are similar to those for State practice: legislation,
treaties, acts of the government, and judicial decisions. This makes sense, as it would
be rather odd for a State to act while simultaneously denying the legality of its acts.
However, since opinio juris is a matter of ascertaining the belief of a State, a broad range
of additional materials can also be invoked, ranging from guidance to State officials in
the form of military manuals or diplomatic guidelines,32 pleadings before international

31 Jurisdictional Immunities of the State (n 18) paras 76-8.

32 ILC, ‘Draft Conclusions on Identification of Customary International Law’ (n 14), Draft Conclusion 10,
para 2, and Commentary, esp para 5.
 SOURCES OF INTERNATIONAL LAW 43

courts,33 correspondence from one State to another State or to a private actor,34 and even
the position taken by a State within an international organization.35 In fact, the ICJ has
occasionally referred to certain General Assembly resolutions to confirm the existence
of opinio juris, focusing on the content of the resolution in question and the conditions
for its adoption.36 Paramount, therefore, is the content of a document or instrument and
whether it demonstrates the attitude or belief of States; and not the form it has taken.
This is why, though not a formal source of international law, the work of the ILC has
been cited approvingly by the Court when assessing the existence of a customary rule.37
The ILC and its mandate will be discussed later, in Section 2.3.4.

[Link] The relativity of custom

Given that a State cannot possibly be expected to consent or object to every single new
instance of relevant practice, silence that is tantamount to acquiescence figures promi­
nently in the emergence of a new rule of customary international law.38 That said, the
threshold is high: acquiescence is equivalent to tacit recognition manifested by unilateral
conduct which the other party may interpret as consent’; it must be compelling’; and it
presupposes clear and consistent acceptance on the part of the acquiescing party.39 If so
established, acquiescence contributes to the formation of a new general rule of custom­
ary international law and will bind all States. International law allows for three situations
where the application of a customary legal rule is not universal. These are: persistent objec­
tion, in relation to a new rule; subsequent objection, in relation to a change in an existing
rule; and the possibility ofparticular or localizedforms ofcustom. Though non-universality
does not impair the emergence of the rule as custom, it does mean that the rule is not
opposable (cannot be invoked) in respect of a State that has availed itself of the exception.40

33 Ibid, para 4. 34 Ibid, para 6; see also Draft Conclusion 12, Commentary, para 6.
35 Nicaragua (Merits) (n 23) 191; see also Texaco Arbitration (Libya v United States) (1978) 53 ILR 490 and
Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ
Reports 2005, p 169, 251, where the General Assembly’s Declaration on Permanent Sovereignty over Natural
Resources was considered to be evidence of customary international law.
36 See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226,
254-5; Western Sahara, Advisory Opinion, ICJ Reports 1975, p 12, 31-3; East Timor (Portugal v Australia),
Jurisdiction and Admissibility, ICJ Reports 1995, p 90, 102; Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, ICJ Reports 2004, p 136, 171-2.
37 Examples now abound, but the first ever reference to the ILC by the Court was only in the 1997 judgment
in Gabcikovo-Nagymaros (Hungary/Slovakia), Merits, ICJ Reports 1997, p 7,38-42. Two other prominent cases
which cite to the Commissions work are Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, ICJ Reports 2007, p 43, paras
173, 214, 385, 398, 420, 431, and 460; and Jurisdictional Immunities of the State (n 18) paras 58, 93, 137.
38 D Azaria, ‘State Silence as Acceptance: A Presumption and an Exception’ (2024) 93 BYBIL (unpaginated),
who engages with classic works in this area, including by IC MacGilbbon, ‘Customary' International Law and
Acquiescence’(1957) 33 BYBIL 15, M Akehurst,‘Custom as a Source of International Law’(1974-5) 47 BYBIL
1, and J Barale, ‘L’acquiescement dans la jurisprudence internationale’ (1965) 11 AFDI389.
39 See, e.g., Gulf of Maine (United States/Canada), Judgment, ICJ Reports 1984, p 246,305; and more recently,
Maritime Dispute (Peru v Chile), Judgment, ICJ Reports 2014, p 3, para 91; and Maritime Delimitation in the
Indian Ocean (Somalia v Kenya), Judgment of 12 October 2021, para 52. See also Boundary Dispute (Burkina
Faso/Mali), Judgment, ICJ Reports 1986, p 554, 597.
See E Bjorge, ‘Opposability and Non-Opposability in International Law’ (2021) 90 BYBIL (unpaginated).
44 THE STRUCTURE OF INTERNATIONAL LAW

Persistent and subsequent objection

The persistent objector’ rule allows a State to exempt itself from the application of a new
customary rule if it can be demonstrated that it had objected persistently, and explic­
itly, during the period in which that norm was emerging.41 A subsequent objector’,
conversely, has accepted the original rule but objects to proposed changes to that rule.
Accordingly, where a State demonstrably objects to the emergence of a new rule—or to
the subsequent modification of an existing rule—and provided other States appear to
acquiesce to that protest, the objector will not be bound by the scope of the new rule.
Clear examples of persistent objection include the refusal by the USA and Japan in the
1970s to accept territorial sea claims42 and, more recently, China’s refusal to accept the
restrictive doctrine of sovereign immunity.43
Persistent and subsequent objections are rarely invoked in practice. Though the
doctrines adhere faithfully to a consensualist vision of international law, they raise the
challenging situation that customary law applies in a non-uniform way between States,
binding some but not others, and perhaps invariably in favour of power asymmetries.44
This asymmetrical arrangement undermines the idea that custom is of general applica­
tion, binding all States, and can potentially make the identification of legal obligations
extremely difficult.

CASE SPOTLIGHT Anglo-Norwegian Fisheries (United Kingdom v Norway),

Judgment, ICJ Reports 1951, p 116

The persistent objector rule was invoked by both parties in the Anglo-Norwegian Fisheries
case. Norway had laid claim to a special delimitation regime for its unusual coastline of fjords
and bays (called ‘straight baselines’); it maintained that throughout history it had always
opposed the idea that maritime boundaries could only extend for a few nautical miles off a
coastline. By contrast, the UK argued for the existence of a standard regime applicable to all
States, allowing the claiming of a fisheries zone of only ten nautical miles from their coast.
The Court sided with Norway, and rejected the UK view that any such rule existed as a
matter of law. The Court’s reasoning was, in substance, that Norway had departed from estab­
lished rules, a departure to which other States had acquiesced; in theory it was an instance
of subsequent objection. However, the Court was not explicit in this, and instead gave cre­
dence to the principle of persistent objection, concluding that even if a general rule existed at
that time, it ‘would appear to be inapplicable as against Norway inasmuch as she has always
opposed any attempt to apply it to the Norwegian coast’ (p 131).

41 See, on this point, Thirlway (n 16) 99-102; JI Charney, ‘The Persistent Objector Rule and the Develop­
ment of Customary International Law’ (1986) 56 BYBIL 1; A Green, The Persistent Objector in International
Law (CUP, 2016); and 1LC, ‘Draft Conclusions on the Identification of Customary International Law’ (n 14),
Commentary to Draft Conclusion 15.
42 See DP O’Connell, International Law of the Sea (OUP, 1982), vol I, 156, 163-4.
43 Democratic Republic of the Congo v FG Hemisphere Associates LLC (8 June 2011) FACV No 5 of 2010,
Hong Kong Court of Final Appeal. China’s objections are further analysed in Chapter 9, Section [Link].
44 See Chimni (n 16) 24-5; P Dumberry, ‘Incoherent and Ineffective: The Doctrine of Persistent Objector
Revisited’ (2010) 59 ICLQ 779.
 SOURCES OF INTERNATIONAL LAW 45

Though ultimately the Court rejected the British claim that there already existed a new
general rule, the Anglo-Norwegian Fisheries case was central in laying out the criteria for
objection. The judgment also illustrates the challenges in how change in customary rules is
managed, and how, especially when there is no overwhelming consensus for a change, you
may have different States objecting to different rules, and a complex mesh of legal relations.
Though often such a situation proves only to be transitional in character, the transition can
stretch out over many decades.

A problematic reality remains that a newly-independent State is deemed to be bound by

all existing customary law from the date of its independence: consent is inferred from
the aspiration towards statehood and recognition by other States, suggesting that the
new State accepts the international legal order as it has already been established.45 The
more radical alternative—that a new State is not bound by existing custom—might be
in keeping with a consent-based legal order and the principle of self-determination for
newly independent States; however, a tabula rasa or clean slate’ approach regarding
custom raises serious issues of incoherence and potential chaos in the identification of
legal obligations binding new States, and such an approach has generally been rejected
even by newly independent States asserting their statehood.

Particular custom
International law provides for rules of customary law that apply only exceptionally to a
subset of States: though known sometimes as ‘local’ or ‘regional’ custom, the ILC has pre­
ferred the term ‘particular’ custom, which will be used here.46 In the ICJ’s Asylum judg­
ment, Colombia had alleged that specific practices of diplomatic asylum existed which
were peculiar to Latin American States, and binding on Peru. Recognizing that local
custom could exist in principle, the Court concluded that a ‘party which relies on a cus­
tom of this kind must prove that this custom is established in such a manner that it has
become binding on the other party’, and held that Colombia had failed to prove that any
such custom was binding on Peru.47 Other attempts to assert norms of regional custom
at the ICJ have been unsuccessful.48 That said, it has been claimed that certain obligations
in the European Convention on Human Rights have become regional customary law.49

45 G Abi-Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8
Howard Law Journal 95.
46 See ILC, ‘Draft Conclusions on the Identification of Customary International Law’ (n 14), Draft Conclu­
sion 15, and Commentary, 154 et seq; and Thirlway (n 16) 103-5.
47 Asylum (Colombia v Peru), Judgment, ICJ Reports 1950, p 266, 276. See also Haya de la Torre (Colombia v
Peru), Judgment, ICJ Reports 1951, p 71.
48 See Rights of Nationals of the United States ofAmerica in Morocco (France v United States), Judgment, ICJ
Reports 1952, p 176, 199-200; and Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua),
Judgment, ICJ Reports 2009, p 213, paras 34-6.
49 E De Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerg­
ing International Constitutional Order’ (2006) 19 Leiden JIL 611, 617; A Pellet, ‘Comments in Response to
Christine Chinkin and in Defence of Jus Cogens as the Best Bastion against the Excesses of Fragmentation’
(2006) 17 Finnish YIL 83, 89.
46 THE STRUCTURE OF INTERNATIONAL LAW

The notion of "bilateral custom’ binding only two States has been more successful.
Returning to the Right ofPassage case, Portugal had contended that there existed a ‘right
of access’ between certain Portuguese enclaves in Indian territory. The ICJ agreed: ‘ [t] he
Court sees no reason why long continued practice between two States accepted by them
as regulating their relations should not form the basis of mutual rights and obligations
between the two States’50
However, though a State may object persistently to the creation of a new rule, it can­
not claim unilaterally to be bound by special custom applying only to itself. To give an
example, it is untenable that a special custom exists that the USA alone is unbound by
the principle against intervention in another State’s affairs.51

[Link] The enduring relevance of custom

Custom has a number of disadvantages in relation to treaties, given that it is unwrit­
ten, shaped through the practice of all States, and there are difficulties in ascertaining
whether a new rule has emerged. What is more, decades of substantial treaty-making
have led to treaties existing in a great number of new areas, from economic regulation
to the environment, armed conflict, and the prosecution of individuals in international
criminal law. The making of customary law has therefore been on the wane since the
advent of the UN Charter in 1945.
However, custom retains an important structuring role. It allows for a holistic vision
of how treaties interrelate with one another, and of how treaties can also contribute
to lawmaking. In areas where the need for international regulation might arise more
quickly than the negotiation, drafting, and ratification of a new treaty, it is useful to
look at practice and how it is received by other States. Finally, in areas where negotiat­
ing or modifying a written agreement proves politically impossible, custom can provide
guidance as to how to act, and practice and opinio juris can shape and develop emergent
international customary rules without requiring new written rules.

2.2.3 Treaties and conventions in force

Treaties, also known interchangeably as ‘conventions’, ‘pacts’, ‘agreements’, ‘charters’, and
‘covenants’, are a formal instrument through which States can agree that certain obli­
gations will be binding between them. A convenient definition is provided in Article
2(1) VCLT: ‘an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation’.52 Though treaties are
studied in detail in Chapter 7, they merit addressing here as they are, by far, the pre­
dominant source of rights and obligations in today’s international legal order;53 and

50 Right of Passage over Indian Territory (Portugal v India), Merits, Judgment, ICJ Reports I960, p 6, 39, 44.
See G Cohen-Jonathan, ‘La coutume locale’ (1961) 7 AFDI 119.
51 Thirl way, Sources (n 16) 104.
52 Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980),
1155 UNTS 331.
53 Lord McNair wryly referred to treaties as the ‘sadly overworked workhorses of the international legal
order’: see AD McNair, 7he Law of Treaties (Clarendon Press, 1961), 739.
 SOURCES OF INTERNATIONAL LAW 47

are the embodiment of the basic principle pacta sunt servanda (‘agreements shall be
kept’). That principle, in turn, is embodied in Article 26 VCLT, itself a multilateral treaty
which aimed to codify much of pre-existing general international law on the subject.
For example, though France has prominently refused to ratify the VCLT, the ICJ has
applied many of its provisions in disputes involving France as an expression of custom­
ary international law.54 This has meant that when the ICJ has had to interpret treaties in
cases involving France as a party, it will do so only when the relevant provision of the
VCLT represents a codification of customary international law which is thus binding
on France as a non-party.55 Chapter 7 of this book is devoted to treaties, so this brief
overview will only cover the nature of treaties as a source of international law, and their
relation to other sources.
It is a basic principle that a treaty only creates law as between the States which are
parties to it’,56 and it is true that a treaty is better understood as a source of obligation
between parties rather than a rule that binds more generally. Consequently, a treaty
should not create obligations for a State which is not a party (a ‘third State’), as to do
so is to impose obligations on it without its consent. This principle is embodied in the
Latin maxim pacta tertiis nec nocent nec prosunt (‘a treaty binds the parties only, and
not a third’). However, that only tells part of the tale; not only do treaties influence the
development of other sources of international law, but they are also very much a part of
the process through which custom is made. Even a bilateral treaty on a highly specific
topic, such as extradition or the levying of customs duties, can be regarded as relevant
in the development of international law. For example, if that bilateral treaty follows a
standard form adopted widely in similar treaties between other States, the most com­
mon provisions or even the treaty as a whole might constitute evidence of a customary
international rule.5/
Perhaps more visible are ‘lawmaking treaties’, multilateral conventions which cre­
ate a regime of legal rules of general application, and not merely limited to the con­
duct of the parties inter se (‘between each other’). Many examples of such lawmaking
treaties are covered in this book: from the Geneva Conventions laying down basic
obligations in relation to armed conflicts; human rights instruments such as the
Torture Convention and Genocide Convention, which seek to prohibit such con­
duct universally and without exception; and sector-specific, comprehensive treaties
such as UNCLOS or the Antarctic Treaty. Though there is no formal distinction
between ‘lawmaking’ treaties and ‘ordinary’ treaties, usually a treaty regarded as

M Prominent recent examples include Sovereign Rights and Maritime Spaces (Peru v Chile), Judgment, ICJ
Reports 2016 (vol. I), p 19, para 15; and Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Prelimi­
nary Objections, ICJ Reports 2018, p 3, at 22-4.
55 See, e.g., Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, ICJ Reports 2008, p 177,
p 219, para 112. See also Frances explanation as to why it voted against ratification of the VCLT: UN Confer­
ence on the Law of Treaties, 2nd Sess, OR A/CONF.39/11/Add.l, 203-4.
56 Certain German Interests in Polish Upper Silesia, Judgment, 1926, PCIJ, Ser A, No 7, p 5,29.
57 See SS Wimbledon, Judgment, 1923, PCIJ, Ser A, No 1, p 25; Panevezys-Saldutiskis Railway, 1939, PCIJ, Ser
A/B, No 17, (Sep Op Erich) 51-2; Nottebohm (n 22) 22-3. See also R Baxter, ‘Treaties and Custom’ (1970) 129
Recueil des Cours 31, 75-91; and Sorensen (n 9) 96-8.
48 THE STRUCTURE OF INTERNATIONAL LAW

‘lawmaking’ will benefit from widespread acceptance by States, specific terms in the
treaty which go further than merely setting obligations but instead ‘create general
rules, and which arguably also guide States and other actors that are not parties’.58 In
North Sea Continental Shelf, the Court had to consider whether then-West Germany
was bound by certain provisions of the 1958 Convention on the Continental Shelf,
which it had signed but not ratified, and thus was not a party. The Court accepted
that a provision of a treaty can lead to the creation of new customary rules, if the
provision was ‘of a fundamentally norm-creating character’, and thus capable of
forming the basis of an emergent or pre-existing customary law binding on a non-
party State.59
Another interaction between treaties and other sources of international law relates
to overlap: what happens if a treaty comes into being which covers the same ground as
a customary rule? The ICJ, in the merits phase of Nicaragua, rejected the idea that exist­
ing custom would be superseded or absorbed into the treaty:
even if a treaty norm [in that case, the UN Charter] and a customary norm relevant to the
present dispute were to have exactly the same content, this would not be a reason for the
Court to hold that the incorporation of the customary norm into treaty law must deprive
the customary norm as to its applicability as distinct from the treaty norm.60

An existing customary rule will thus continue to exist irrespective of the adoption of
the treaty rule, which surely makes sense as two rules with the same content may be
subject to different principles of interpretation and application. In Nicaragua, the dis­
tinction was relevant as the Court did not have jurisdiction over the treaty obligations,
but did have jurisdiction to look at customary international law.61 What this points to,
above all, is the fact that developments in State practice and opinio juris may come to
influence or even modify the interpretation of a treaty provision. To illustrate, in its
1996 advisory opinion in Nuclear Weapons, the ICJ interpreted the right to self-defence
under Article 51 of the UN Charter in light of requirements of necessity and propor­
tionality that are not found in the text of that provision. 62 However, not all treaty rules
enter into customary law. In Nicaragua, the Article 51 requirement that any exercise
of the right to self-defence be reported to the Security Council was not held to have
crystallized into custom.63

See Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports
1949, p 174, 185; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16,
59; and Y Dinstein, ‘The Interaction between Customary International Law and Treaties’ (2006) 322 Recueil
des Cours 247.
North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v the
Netherlands), Judgment, ICJ Reports 1969, p 3,41-2.
M See Nicaragua (Merits) (n 23) 94-5. See also Mutual Assistance in Criminal Matters (n 52) 222, where the
Court could refer to certain rules of customary law ‘reflected in’ the VCLT despite the fact that France was not
a party to that treaty.
61 See W Czaplinski, ‘Sources of Law in the Nicaragua Case’ (1989) 39 ICLQ 151.
62 Nuclear Weapons (n 36) 244-5. 63 Nicaragua (Merits) (n 23) 105.
 SOURCES OF INTERNATIONAL LAW 49

2.2.4 General principles recognized by'civilized nations'

[Link] The place of general principles in Article 38

Article 38(1)(c) of the ICJ and PCIJ Statutes provides that general principles of law rec­
ognized by civilized nations also constitute a source of international law. It is from the
outset more constructive to clarify the unfortunate use of the term civilized nations’,
meant at the time to exclude representation of municipal legal orders then considered
‘uncivilized’, as a relic of outdated European chauvinism.64 Though it is grimly accu­
rate that the notion of ‘civilization’ has been invoked in international law to facilitate
structures of exclusion and domination,65 within Article 38, at least, the term is prob­
ably best reconstrued as a term of art to suggest that a principle should exist across
a broad range of legal systems, traditions, and regions. Already the ILC, in its Draft
Conclusions on General Principles of Law (adopted on first reading), proposes instead
to substitute the term with the notion of community of nations’, drawing from Article
15(2) of the ICCPR.66
The category of general principles of law’ in Article 38 of the PCIJ Statute arose from
a concern by its drafters that the Court might find that there were no treaty or custom­
ary rules which could resolve a dispute. It was thought inappropriate in such cases to
oblige the Court to declare what is known as a non liquet (‘the law is not clear’)—in
essence, a gap in the law.67 Legally speaking, it was preferable for the Court to deduce a
relevant rule from general principles of law, many of which already existed in various
municipal legal systems, to close such possible gaps. There was nothing new in this, as
already in 1910 an arbitral tribunal had found that if international law did not contain
an express rule to resolve a dispute, ‘the function of jurisprudence is to resolve the con­
flict of opposing rights and interests by applying, in default of any specific provisions of
law, the corollaries of general principles, and so to find... the solution of the problem’.68
Draft Conclusion 3 also tentatively suggests that a second category of general prin­
ciples originates within the international legal system itself.69 It proposes that such
endogenous general principles exist when they are recognized as being intrinsic to the
international legal system, in that they are specific to it, and reflect and regulate its basic

w H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960-1989 (Part II)’ (1990)
61 BYBIL 1; B Cheng, General Principles of Law: As Applied by International Courts and Tribunals (Stevens &
Sons, 1953), 25.
65 See, e.g., M Koskenniemi, The Gentle Civilizer of Nations (CUP, 2001), ch 2; N Tzouvala, Capitalism as
Civilization (CUP, 2021), chs 1-2.
66 See Report of the ILC on the Work of its 74,h Session, UN Doc A/78/10 (2023), paras 40-1, esp paras 3-4
of the Commentary to Draft Conclusion 2.
67 Ibid, Draft Conclusion 10, and paras 1-3 and 6 of the commentary thereto. See further Hernandez (n 10)
259 et seq on recourse to general principles as a gap-filling device in the law; and 31-2, recalling the drafting
history of what became Art 38( 1 )(c). See further H Lauterpacht, ‘Some Observations on the Prohibition of Non
Liquet and the Completeness of the Legal Order’ in FM van Asbeck et al (eds), Symbolae Verzijl (Nijhoff, 1958),
196; and L Siorat, Le probleme des lacunes en droit international. Contribution a letude des sources du droit et de
la fonction judiciaire (Pichon and Durant-Auzias, 1958).
68 See British-US Arbitral Tribunal in Eastern Extension, Australasia and China Telegraph Co Ltd case
(1923) Nielsen’s Report 40, 75-6, cited in Cheng (n 61) xiii.
69 ILC, Draft Conclusions on General Principles of Law (n 66), Draft Conclusion 3.
50 THE STRUCTURE OF INTERNATIONAL LAW

features.70 Though this potential second category is not without controversy, even being
disputed within the ILC itself,71 the ILC suggests that general principles formed in this
matter may be discerned by reference to other existing rules in the international legal
system such as treaties or custom. The ILC also posits that it provides an illustrative list
of general principles specific to the international legal system, such as consent by States
to the jurisdiction of courts; the principle of uti possedetis under which colonial admin­
istrative borders are maintained upon independence to ensure continuity; and certain
humanitarian principles related to international humanitarian law.72
Unlike with treaties and customary international law, general principles are not
derived from the consent of a State to be bound. In Draft Conclusion 4, the ILC endorses
a descriptive, two-step analysis: first, the identification of a ‘principle common to the
various legal systems of the world’ and, secondly, whether that principle can be trans­
posed into international law.73 In Draft Conclusion 5, the ILC proposes that a wide
and representative comparative analysis of national legal systems is required. General
principles of law seem to be defined by their structural character: to avoid gaps in the
international legal system, to aid in the interpretation of other primary sources in
novel situations, and to ensure that, even if there is no immediate and obvious rule
applicable to a given international situation, international law is coherent and com­
plete—in other words, that every international situation is capable of being deter­
mined as a matter of law’.74
Some examples of general principles recognized by the ICJ include the obligation to
make reparation for breach of an obligation;75 recognition of the principles of estoppel
(which precludes a party from asserting, in court, the contrary of what has been implied
by their own previous conduct or statements);76 acquiescence;77 abuse of rights and the

'° See ibid. Commentary to Draft Conclusion 7 at para 4.

71 Ibid, Commentary to Draft Conclusion 7, paras 11-3. Thirlway, Sources (n 16) 109 el seq is much more
sceptical about the existence of general principles unanchored in domestic law, though at 117, he concedes
that certain general principles seemed to find recognition within the specific context of international judicial
proceedings. For a more favourable position, see J Ellis, ‘General Principles and Comparative Law’ (2011) 22
EJI L 949, 970; and I Saunders, General Principles as a Source of International Law (Hart, 2021), 147.
72 Ibid, Commentary to Draft Conclusion 7, paras 5-10. See further E Bjorge, ‘General Principles of Law
Formed within the International Legal System’ (2023) 72 ICLQ 845.
3 Ibid, Draft Conclusion 4. In Draft Conclusion 6 and its accompanying commentary, the ILC explains
that transposition refers to the potential incompatibility of a principle derived from domestic law, and acts as
a safeguard against these.
‘ Ibid, Draft Conclusion 10. Oppenheim’s International Law (n 6) 13; Thirlway, Sources (n 16) 111-12. On
the law-creative power bestowed by judges through this doctrine, see Hernandez (n 10) ch VIII.
75 See Factory at Chorzow (Merits) (Germany v Poland), Judgment, 1928, PCIJ, Ser A, No 17, p 31. For a
detailed account of PCIJ and ICJ case law identifying further general principles, see M Dordeska, General
Principles Recognized by Civilized Nations (1922-2018) (Brill, 2020).
,b This is especially if the other party has relied to their detriment on such conduct or statements: see, e.g.,
GulfofMaine (n 38) 309; Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile), Preliminary Objec­
tions, ICJ Reports 2018, p 1, 49-50. See further A Kulick, ‘About the Order of Cart and Horse, Among Other
Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals’ (2016) 27 EJIL 107.
77 See Legal Status of Eastern Greenland, 1933, PCIJ, Ser A/B, No 53, p 22, 52-4, 62, 69; North Sea Conti­
nental Shelf (n 56) 26; and Elettronica Sicula SpA (United States v Italy), Judgment, ICJ Reports 1989, p 15,44.
 SOURCES OF INTERNATIONAL LAW 51

requirement of good faith;78 nemo judex in sua causa propria (‘no one should be judge in
their own case);79 Us pendens (another suit is pending before another procedure);80 and
res judicata (‘the matter has already been judged’).81 Of course, the ICJ is not the only
relevant international court, and its decisions are only subsidiary in character; there are
many other judicial bodies, such as regional human rights courts and tribunals, spe­
cialized international bodies such as ITLOS, and the international criminal tribunals,
investment arbitral tribunals, and, of course, the decisions of national courts.82
Recently, the Covid-19 pandemic has impelled discussions as to whether due dili­
gence, in particular in relation to the customary law obligation to prevent transboundary
harm in another State (the ‘no harm’ principle as long recognized in the Corfu Channel
judgment), may also be a general principle requiring certain conduct by States in fulfill­
ing their international legal obligations. For example, has been argued that in early 2020,
Chinese officials were under an obligation to take preventive measures to halt the trans­
boundary spread of the Covid-19 virus, such as those foreseen in the 2005 International
Health Regulations of the World Health Organization (WHO): these included efforts of
monitoring and response, early notification to other States, and promptly to acknowl­
edge the existence of a public health emergency.83 The point is not that these would
have succeeded in containing the virus—they would not—but such efforts might have
allowed States to mitigate contagion and put in place further preventive measures.

THEORY AND DEBATES The General Principle of‘Clean Hands'

The general principle in adimplenti non est adimplendum is often understood as the ‘clean
hands’ doctrine. Simply put, it prevents a party from complaining of the misconduct of
another if it has engaged in similar misconduct. Perhaps because of its roots in equity, the
clean hands doctrine has not always enjoyed concrete support under international law. For
example, in the PCIJ’s judgment in Diversion of Water from the River Meuse (Belgium v the
Netherlands), though both parties complained of a breach by the other, only Judges Hudson
(at p 77) and Anzilotti (at p 49) mentioned the principle in their individual opinions.

78 Nuclear Tests (Australia v France; New Zealand v France), Jurisdiction and Admissibility, ICJ Reports 1974,
p 253, 267; and the earlier Free Zones of Upper Savoy and the District of Gex, Second Phase, 1930, PCIJ, Ser A,
No 24, p 12; and 1932, PCIJ, Ser A/B, No 46, p 96, 167.
79 Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, PCIJ, Ser B,
No 12, p 32.
80 Certain German Interests in Polish Upper Silesia, Preliminary Objections, 1925, PCIJ, Ser A, No 6, p 20.
81 Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion,
ICJ Reports 1954, p 47, 53; Application of the Genocide Convention (n 37) paras 113-15; Delimitation of the
Continental Shelf between Nicaragua and Colombia beyond 200 Miles (Nicaragua v Colombia), Preliminary
Objections, ICJ Reports 2016, p 100, paras 58-61.
82 See ILC, Draft Conclusions on General Principles of Law (n 66), Commentary to Draft Conclusion 8,
paras 2-4, 7. Saunders (n 72) develops a ‘tetrahedral’ model considering the function, type, methodology, and
legitimacy of a general principle to survey a range of existing principles.
83 The 2005 International Health Regulations have been adopted by the World Health Assembly, which
under Arts 21 and 22 of the Constitution of the WHO, may enact binding regulations on member States, un­
less they opt out directly. See further O Hathaway and A Philips-Robins, ‘WHO’s Pandemic Response and the
International Health Regulations’ Just Security Blog (8 December 2020).
52 THE STRUCTURE OF INTERNATIONAL LAW

The principle has been invoked by parties before the ICJ in other cases (e.g., the USA in
Nicaragua, LaGrand, and Oil Platforms, Israel in Construction of a Wall, though admittedly
without much success). However, a form of it, the principle ex iniuria ius non oritur (‘unjust
acts cannot create law’), was applied in the ICJ’s 1997 judgment in Gabcfkovo-Nagymaros
Project (Hungary/Slovakia), ICJ Reports 1997, p 7. In that case, neither Hungary nor Slovakia
had been complying with a 1977 Treaty between them relating to the construction of a dam
on the River Danube; by applying the ex iniuria ius non oritur principle, the Court rejected the
idea that breaches could void obligations under that Treaty. As such, though the clean hands
doctrine may not have found explicit recognition in that judgment, one can see the relevance
of equity in concrete cases.
The ICJ has repeatedly declined to apply the ‘clean hands’ rule in international law and
puts into question its validity. In its 2023 judgment in Certain Iranian Assets ((Iran v United
States), Judgment, ICJ Reports 2023, p 51), the Court dismissed the United States’ use of the
doctrine, recalling that it had never endorsed the ‘clean hands’ principle, which had to be
treated ‘with the utmost caution’ (para 81). In 2024, the Court again rejected the invoca­
tion of the doctrine as a defence on the merits, arguing that it is inapplicable in a dispute
where the Court’s jurisdiction is established and the application is admissible: see Application
of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v
Russia), Judgment of 31 January 2024, paras 36-8, 155.

[Link] The challenge in finding and applying general principles

in international law
In the main, if a principle is widely recognized to exist within the national legal orders
of a large majority of States, and even when compared across different legal traditions,
it may be called a general principle of law by international lawyers.84 However, such a
comparative method has its own methodological problems given the inherent chal­
lenge of comparing a wide range of different legal systems and deriving common stand­
ards from them.85 It has certainly never prevailed before the ICJ. In Right of Passage,
Portugal unsuccessfully adduced a comparative study of sixty-four municipal legal sys­
tems to argue for a general principle of law to support its claim to a right of passage.86
In their recent dispute, both Timor-Leste and Australia sought to identify the existence
of a general principle of legal professional privilege by reference to a wide range of
legal families and systems, across all regions.87 Moreover, ascertaining the existence
of a general principle in municipal law does not suffice for wholesale borrowing from

M See, e.g., P Guggenheim, ‘Contribution a 1’histoire des sources du droit ds gens’ (1958) 94 Recueil des
Cours 6, 78, referring to the work of the Committee of Jurists, and specifically, the views of Elihu Root (USA)
and Lord Phillimore (UK); and Hernandez (n 10) 31-2.
85 See generally Ellis (n 72); Saunders (n 72) 147.
86 Right of Passage (n 47). See also Malta’s unsuccessful claim relying on domestic legal systems in Continen­
tal Shelf (Tunisia/Libyan Arab Jamahiriya), Application by Malta to Intervene, ICJ Reports 1981, p 3.
87 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia),
Provisional Measures, ICJ Reports 2014, p 417.
 SOURCES OF INTERNATIONAL LAW 53

municipal law, but requires a careful transposition of only those norms which are com­
patible with international law and the obligations contained in it.88
In sum, general principles must meet two conditions: to be common within the vari­
ous municipal legal orders, and to as applicable with, or at least compatible with, the
broader framework of international law.89 As Lord McNair explained,

The way in which international law borrows from [general principles of law recognized
by civilized nations] is not by means of importing private law institutions ‘lock, stock and
barrel’, ready-made and fully equipped with a set of rules ... the true view of the duty of
international tribunals in this matter is to regard any features or terminology which are
reminiscent of the rules and institutions of private law as an indication of policy and prin­
ciples rather than as directly importing these rules and institutions.90

Perhaps due to the difficulties in tracing general principles back to the consent of States,
the ICJ, and before it the PCIJ, have been sparing in referring to them, and when doing
so have tended to use vague terms that could apply interchangeably to customary inter­
national law and to general principles.91 One area, however, in which the Court has
relied heavily on municipal law concepts has been with respect to the status of limited
liability corporations.92

2.2.43 The place of equity as a general principle

‘Equity’, a reference to general considerations of fairness and reasonableness, has long
existed within common law legal systems. Within international law, it plays a curious
role. For example, Article 38(2) of the ICJ Statute offers States the possibility of consent­
ing to a dispute between them being decided ex aequo et bono, and thus to depart from
settled rules of law. This is equity contra legem (contrary to law’), or at least ultra legem
(‘beyond the law’), which involves a high degree of unpredictability. Perhaps for this
reason, Article 38(2) has never been invoked by parties in a dispute before the ICJ.93
More relevant for our purposes is the role of equity infra legem, as a general principle
which provides guidance for the resolution of a dispute.94 In North Sea Continental

88 C de Visscher, Theory and Reality in Public International Law (3rd edn, Bruylant, 1968), 400-2. Cf H
Thirlway, ‘Concepts, Principles, Rules and Analogies: International and Municipal Legal Reasoning’ (2002)
294 Recueil des Cours 268, who cautions against such borrowing in general.
89 See ILC, Draft Conclusions on General Principles of Law (n 66), Draft Conclusions 4 and 6. In the Com­
mentary to Draft Conclusion 6, paras 4-6. In para 7, the ILC suggests that accordingly, a degree of recognition
by the community of nations is required.
90 See International Status ofSouth West Africa, Advisory Opinion, ICJ Reports 1950, p 128, Separate Opinion
of Lord McNair, 148.
91 Besides Right of Passage (n 47), see also Reservations to the Convention on the Prevention and the Pun­
ishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15, 23; North Sea Continental Shelf
(n 56) para 17.
92 Barcelona Traction Heat, Light and Power Company (Belgium v Spain), Second Phase, ICJ Reports 1970,
p 3, 37; Ahmadou Sadio Diallo (Guinea v Congo), Judgment, ICJ Reports 2010, p 639, para 47.
93 See Hernandez (n 10) 67-8; and generally C Titi, The Function of Equity in International Law (OUP,
2021), a refreshing contribution that examines the place of equity as a general principle of international law,
especially ch 7 on equity ex aequo et bono.
91 See, e.g., Diversion of the Meuse, 1937, PCIJ, SerA/B No 70, p 4, 73 (Separate Opinion of Judge Hudson).
In Titi (n 91), ch 3, the relevant practice of international courts and tribunals is examined.
54 THE STRUCTURE OF INTERNATIONAL LAW

Shelf, the Court declared that its delimitation of the maritime boundaries between the
three States should be effected ‘in accordance with equitable principles’.95 That approach
was followed in the later Maritime Delimitation in the Black Sea.96 There are also several
cases, primarily in relation to maritime rights but also in respect of boundary disputes,
where the Court has considered equity, equitable considerations, or an equitable result
to form part of a specific international legal rule.97 However, in Barcelona Traction, the
Court dismissed without comment a Belgian submission that considerations of equity
should allow it to exercise diplomatic protection over shareholders in a Canadian com­
pany.98 Equity is also found in treaties: Articles 69-70 of the 1982 UNCLOS provide
that States should apportion resources in their exclusive economic zone on an equitable
basis’,99 and the 1997 Watercourses Convention lays great emphasis on equity in relation
to certain obligations contained in it.100 As such, the better view with respect to equity is
that, though not itself a source of law, it is one of the guiding principles which can steer
the interpretation and application of existing legal rules.101

2.2.5 Subsidiary sources of international law

Article 38(l)(d) enumerates two further categories, judicial decisions and the ‘writ­
ings of the most eminent publicists’. Unlike the formal sources (treaties, customary law,
and general principles), these two are identified explicitly as ‘subsidiary means for the
determination of rules of law’. To do so rests on the idea that a judge or ‘publicist’ (an
author writing a scholarly work) will, in fashioning a legal argument, rely on formal
sources of law to develop their argument. In this respect, it is useful to refer to these as
‘material sources’ of international law, relevant because of their content, method, and
style of reasoning.102 Such material sources remain subsidiary, a means to identify the
sources that apply; but of course, due to decades of tradition and deference, subsidiary
sources are key evidence of the existence of other formal sources of international law.

95 North Sea Continental Shelf (n 56) 53.

96 Maritime Delimitation in the Black Sea (Romania/Ukraine), Judgment, ICJ Reports 2009, p 61, para 111.
97 See, e.g., Fisheries Jurisdiction (United Kingdom v Iceland), Jurisdiction and Admissibility, ICJ Reports
1974, p 3,30-5 (in relation to fisheries); and Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ
Reports 1982, p 18, 60 (in relation to maritime delimitation); and Frontier Dispute (Burkina Faso/Mali), Judg­
ment, ICJ Reports 1986, p 554, 631-3 (in relation to the division of a frontier pool).
98 Barcelona Traction (n 87) para 93.
99 See Chapter 18, Section 18.5, on this point. UNCLOS is peppered with further references to equitable
principles, especially in relation to maritime delimitation (Art 74) and delimitation of the continental shelf
(Art 83).
100 Convention on the Law of the Non-Navigational Uses of International Watercourses (signed 21 May
1997, entered into force 17 August 2014), UNGA Res 51/229 (7 November 1996), Annex, Part I Introduction,
esp Art 5.
Though Titi (n 91) contends that across contemporary international law, equity is a normative general
principle: see esp 199-203, and ch 8, where she argues that most general principles such as the clean hands
doctrine, estoppel, and abuse of rights are ‘variations’ of equity.
102 See Thirlway, Sources (n 16) 6-8. The ILC’s ongoing work on subsidiary sources has already lead to the
publication of two reports: see in particular ILC, 'Second Report on Subsidiary Means for the Determination of
Rules of International Law* (CC Jalloh, Special Rapporteur), UN Doc A/CN.4/769 (30 January 2024).
 SOURCES OF INTERNATIONAL LAW 55

Due to the spread of the case-based common law tradition throughout the
Anglophone world, many English-speaking lawyers are surprised at first by the fact
that judicial decisions are not a formal source of international law. But Article 59 of
the Courts own Statute makes clear that its decisions have no binding force except
as between the parties and in respect of that particular case’, and serves to exclude a
binding system of precedent as a source of new legal rules.103 This is consistent with a
consent-based view of international law, where a State might find that a judgment in
which it had no representation suddenly elucidated a rule of international law to which
it was bound.
The formally subsidiary character ofjudicial decisions significantly understates their
actual influence and authority, especially those of the ICJ, references to which are abun­
dant throughout international legal literature.104 Many significant PCIJ and ICJ judg­
ments have played a decisive role in the development of international law, on topics
ranging from the legal personality of international organizations,105 to rules on the use
of force,106 and customary law on the delimitation of maritime boundaries.107 Though
the Court continues to proclaim publicly that it does not regard its previous judgments
as binding, one of the most striking statements was that it would in fact adhere rather
faithfully to its previous decisions:
To the extent that the decisions contain findings of law, the Court will treat them as it treats
all previous decisions: that is to say that, while those decisions are in no way binding on
the Court, it will not depart from its settled jurisprudence unless it finds very particular
reasons to do so.108

It is worth adding that the practice of adhering to previous judicial decisions goes fur­
ther than merely ‘determining the law; certain judicial decisions have been determina­
tive as to the existence of international legal rules.109 As ILC Special Rapporteur Charles
Jalloh has put it, the reasoning and conclusions of previous rulings may not be bind­
ing, but they have ‘persuasive and practical value in helping to resolve subsequent legal
disputes’.110

103 See Polish Upper Silesia (n 53) 19; H Waldock, ‘General Course on Public International Law’ (1962) 106
Recueil des Cours 5, 91; Sorensen (n 9) 161; Hudson (n 9) 207; Thirlway, Sources (n 16) 137-9; Hernandez
(n 10) ch VI.
104 See ILC, ‘Second Report on Subsidiary Means’ (n 109), paras 89-96.
105 See, e.g., Reparation for Injuries (n 55).
106 See, e.g., Nicaragua (Merits) (n 23); see also Oil Platforms (Islamic Republic ofIran v United States), Judg­
ment, ICJ Reports 2003, p 161.
107 See, e.g., Maritime Delimitation in the Black Sea (n 94); North Sea Continental Shelf (n 56); Continental
Shelf (Libya/Malta) (n 18); Continental Shelf (Tunisia/Libya) (n 95).
108 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v
Serbia), Jurisdiction, ICJ Reports 2008, pp 412, 428-9.
109 See Herndndez (n 10) 180 et seq on the authority of judicial decisions in international law; but (/Thirl­
way, Sources (n 16) 137-8.
110 ILC, ‘Second Report on Subsidiary Means’ (n 102), para 203. In Annex II, Draft Conclusions 7 and 8 are
presented; they respectively confirm the absence of a rule of precedent and the persuasive value of previous
decisions.
56 THE STRUCTURE OF INTERNATIONAL LAW

The ICJ is not alone; the reference in Article 38 to ‘judicial decisions’ also extends
to international arbitral awards, the judgments of other international tribunals such as
the International Criminal Court (ICC), the International Criminal Tribunal for the
former Yugoslavia (ICTY), and the decisions of the various panels constituted under
the World Trade Organization (WTO). Moreover, after decades of caution, the ICJ itself
has also begun to cite the decisions of other international bodies, including arbitral
tribunals,111 the ICTY,112 the European Court of Human Rights,113 and human rights
treaty bodies.114
It should be mentioned that the reference to judicial decisions also applies to the
decisions of municipal courts. First, the judgments of domestic courts may be a mate­
rial source of international law, as they might contain a useful interpretation of a given
rule which is considered persuasive.115 More commonly, as municipal courts are State
organs, their decisions have been presented as evidence of State practice and have been
treated by the Court as such.116 The question in such cases is not whether the municipal
court has correctly stated the law but, rather, the extent to which its decision represents
relevant practice which might crystallize into a new customary rule.117
Let us summarily address the teachings of eminent publicists.118 As the history of
international law surveyed in Chapter 1 demonstrates, the dominant jurists influenc­
ing international law were nearly exclusively European,119 which has led to charges of

1,1 The Alabama Claims Arbitration (1872) 1 Moore Inti Arbitrations 495 was cited in Nottebohm (n 22) 119
and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement
of 26 June 1947, Advisory Opinion, ICJ Reports 1988, p 12, 34. Delimitation of the Continental Shelf between
the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France) (1977) XVIII
RIAA 3 was cited in Continental Shelf (Tunisia/Libya) (n 95) 57; Gulf of Maine (n 38) 293; Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea Intervening), Merits, ICJ
Reports 2002, p 303,432; Maritime Delimitation in the Black Sea (n 94) 129.
1,2 Application of the Genocide Convention (n 37) para 223.
1,3 Jurisdictional Immunities of the State (n 18) para 90.
1,4 Diallo (n 87) para 66; Application of the International Convention on the Elimination ofAll Forms of Ra­
cial Discrimination (Qatar v United Arab Emirates), Preliminary Objections, Judgment, ICJ Reports 2021, p 71,
para 101; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Repara­
tions, Judgment, ICJ Reports 2022, p 13, para 188.
115 In Accordance with International Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo, Advisory Opinion, ICJ Reports 2010, p 403, para 55, the Court
expressly declined to analyse the Re Secession of Quebec reference given by the Supreme Court of Canada, on
the basis that it was not relevant for that opinion. See further Thirlway, Sources (n 16) 140-2.
116 See earlier Section 2.2.5. In Arrest Warrant (n 22) para 56, the parties had relied upon R v Bow Street
Metropolitan Stipendiary, ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [2000] AC 147 (House of Lords
(UK)); SOS Attentat et Castelnau d’Esnault v Qadajfi, Head ofState of the State of Libya, Crim 13 mars 2000, no
1414 (Court of Cassation (France)). In Jurisdictional Immunities of the State (n 18), the ICJ relied on judgments
of national courts from around the world in assessing the existence of a rule on immunity (see Chapter 9).
n' See further A Roberts, ‘Comparative International Law? The Role of National Courts in Creating and
Enforcing International Law* (2011) 60 ICLQ 57.
118 The ILC’s Draft Conclusions, provisionally adopted in 2024, allow for ‘any other means’, but specifically
enumerate decisions of courts and tribunals and teachings as distinct categories of subsidiary means. See Sec­
ond Report on Subsidiary Means’ (n 109) 68, Annex I, Draft Conclusion 2.
1,9 A point vividly exemplified in A Anghie, Imperialism, Sovereignty and the Making of International Law
(CUP, 2005); and M Koskenniemi, The Gentle Civilizer ofNations: The Rise and Fall ofInternational Law (1870-
1960) (CUP, 2001).
 SOURCES OF INTERNATIONAL LAW 57

Eurocentrism.120 Though academic writings by no means constitute a legal source in the

formal sense, the role of 'la doctrine (in the French sense) can stimulate new directions
for policy and practice.121 This tendency is potentially amplified by the inclination of the
many eminent publicists to serve as advisers to governments, officials in international
organizations, and international judges, thus increasing their lawmaking influence in
another capacity.122 For this reason, there are comparatively fewer references to writings
by international courts, and virtually no examples of the ICJ so doing.

2.3 Beyond Article 38: other possible sources

A century of practice has developed around the enumeration of sources in Article 38;
however, the dynamics of international lawmaking are such that many other materials
may constitute compelling evidence of the existence of a new rule. Without embarking
on a complex discussion as to whether new sources have in fact emerged, a brief map­
ping exercise should assist in identifying potential additional authorities that might
contribute to the formation of an international legal rule.

2.3.1 Unilateral acts of a State

In defined circumstances, the unilateral acts of a State are capable of binding that State.
The easiest such cases are those where a State works through traditional channels, such as
the ratification of a specific treaty or an objection to an act by another State which might
prevent the formation of a new customary rule. Clearly, not every unilateral statement
will have a binding effect; however, in very specific situations a unilateral act by a State not
directed to a specific addressee may give rise to international legal obligations. The ILC
has been studying the topic for some time, and in 2006 adopted ten ‘Guiding Principles
applicable to unilateral declarations of States capable of creating legal obligations’.123
To be binding, the unilateral act must be accepted, recognized, or somehow acknowl­
edged by another State. If it is met with absolutely no reaction, it cannot be legally
relevant. In this sense, unilateral acts are a sort of‘inchoate’ (incomplete) treaty, which
is only completed by subsequent events.124 Here it is useful to recall the ICJ’s reasoning

120 Amongst several, see Chimni (n 16); A Becker Lorca, Mestizo International Law (CUP, 2016); CF Am-
erasinghe, ‘South Asian Antecedents of International Law’ in K Wellens (ed), International Law— Theory and
Practice (Kluwer, 1998), 3; TO Elias, Africa and the Development of International Law (Martinus Nijhoff, 1972).
121 See, e.g., M Lachs, ‘Teachings and Teaching of International Law’ (1976-III) 151 Recueil des Cours 161;
GI Herndndez, ‘The Responsibility of the International Legal Academic: Situating the Grammarian within the
“Invisible College’” in A Nollkaemper, W Werner, J d’Aspremont, and T Gazzini (eds), International Law as a
Profession (CUP, 2017).
122 A point memorably made by O Schachter, ‘The Invisible College of International Lawyers’ (1977-8) 72
Northwestern University LR 217.
I2i (2006) ILC Ybk vol II, pt 2,369-81. See, more generally, E Kassoti, The Juridical Nature of Unilateral Acts
of States in International Law (Brill, 2015); MI Torres Cazorla, Los Ados Unilaterales de los Estados (Tecnos,
2010); and A Rubin, ‘The International Legal Effect of Unilateral Declarations’ (1977) 71 AJIL 1.
124 See Thirl way, Sources (n 16) 51-9.
58 THE STRUCTURE OF INTERNATIONAL LAW

in the Nuclear Tests dispute. After protests from Australia and New Zealand following
atmospheric nuclear testing in French Polynesian territories, a unilateral declaration by
the Prime Minister of France that it would no longer conduct such testing in the South
Pacific was held to be a unilateral act assuming an international legal obligation:
It is well recognized that declarations made by way of unilateral acts, concerning legal
or factual situations, may have the effect of creating legal obligations ... When it is the
intention of the State making the declaration that it should become bound according to
its terms, that intention confers on the declaration the character of a legal undertaking.125

Because Australia and New Zealand were entitled to rely on Frances promise, it was
held that their claims were moot’, or no longer had any object. The Courts decision
is inextricably bound to other controversies as nuclear weapons have always been a
delicate issue for the Court;126 however, following this judgment it has no longer been
seriously disputed that a unilateral act of a State is capable, in certain circumstances, of
generating a legal obligation.

2.3.2 Resolutions of the General Assembly

The General Assembly of the United Nations is composed of all member States of that
organization. Unlike the Security Council, however, it has no formal power under the
UN Charter to issue resolutions binding on member States.127 Yet, some resolutions of
the General Assembly have proven highly influential in the development of international
law, as they have provided an outlet for States to make statements which can constitute
evidence of their opinio juris as to the existence of a rule. This would depend on several
factors, such as the clarity or ambiguity of the terms of the resolution, the voting pattern
of States, and whether the terms of the resolution reflect earlier resolutions or form part
of a pattern of future resolutions. For example, in Nicaragua (Merits), the Court noted
that the relevant ‘opinio juris may, with all due caution, be deduced from, inter alia, the
attitude of the Parties and the attitude of States towards certain General Assembly reso­
lutions’, and referred to General Assembly Resolution 2625, the Declaration on Friendly
Relations between States, as evidence to support its conclusions.128
General Assembly resolutions may also represent a starting point for the progressive
development of international law. In Nuclear Weapons, the Court noted the ‘normative
value’ of General Assembly resolutions: ‘[t]o establish whether this is true... it is neces­
sary to look at its content and the conditions of its adoption ... a series of resolutions
may show the gradual evolution of the opinio juris required for the establishment of a
new rule’.129 This is particularly so when they are near-unanimous or unanimous.

125 Nuclear Tests (n 72) para 43.

126 The casting vote of the President, to break a tie, has only been used twice in the modern ICJ era: in the
1996 Nuclear Weapons advisory opinion (n 36), and in Obligations Concerning Negotiations Relating to Cessa­
tion of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom), Preliminary
Objections, JCJ Reports 2016, p 833.
127 See Arts 24-5 of the UN Charter, discussed later in Chapter 6.
128 Nicaragua (Merits) (n 23) 99-100. 129 See Nuclear Weapons (n 36) 254-5.
 SOURCES OF INTERNATIONAL LAW 59

2.3.3 Resolutions of the Security Council

The UN Security Council is composed of only fifteen States elected by the General
Assembly, and has primary responsibility under the UN Charter for the maintenance of
international peace and security.130 What sets the Security Council apart is that, under
Article 25 of the Charter, UN members have agreed that the ‘decisions (and not merely
the resolutions) of the Security Council will be carried out by all its members. Though
not formally a lawmaking organ, though, the Council has the power to create inter­
national legal obligations binding on all States.131 What is more, under Article 103 of
the Charter, obligations created by the Council will prevail over obligations under any
other international agreement in the case of a conflict.
In recent years, the Security Council has begun to pass resolutions, especially in rela­
tion to terrorism and disarmament, that have gone beyond a specific threat to interna­
tional peace and security, and have created rules of a general character that apply to all
members. For example, just weeks after the 9/11 attacks in the USA, the Council passed
Resolution 1373,132 which set out general rules on the fight against terrorism directed
towards all UN members, rather than just a particular State or situation. Such rules have
been characterized as coming close to ‘legislating’.133

2.3.4 'Soft' law

Finally, by way of clarification, a brief excursion into the so-called concept of‘soft law’
must be made. Unlike ‘hard law’, which represents legally binding rules, ‘soft law’ is the
name given to the body of standards, commitments, declarations, policy guidelines,
codes of conduct, and other instruments which do not impose legally binding obliga­
tions on States, or any other legal actors for that matter.134 That non-binding quality is
the distinguishing feature of‘soft’ law, which in this respect is a misleading term.135
What is the relevance, then, of soft law? Simply put, because of international law’s
decentralized structure, soft law instruments have the potential to contribute to the
development of new ‘hard’ law.136 Soft law instruments are frequently invoked when
States have not yet arrived at the consensus necessary to enter into binding obligations,
such as the imposition of human rights obligations on multinational corporations, 137 the

130 UN Charter, Art 24(1). 1,1 See Chapter 14, Section 14.5, ‘Collective Security’.
152 UNSC Res 1373 (28 September 2001).
133 See, e.g., S Talmon, ‘The Security Council as World Legislature’ (2005) 95 AJIL 193; J Alvarez, ‘Judg­
ing the Security Council’ (1996) 90 AJIL 22; D Joyner, ‘The Security Council as Legal Hegemon (2012) 43
Georgetown JIL 225.
134 See, e.g., AT Guzman, ‘The Design of International Agreements’ (2005) 16 EJIL 579; A Aust, ‘The Theory
and Practice of Nonbinding International Agreements’ (1984) 35 ICLQ 787; O Schachter, ‘The Twilight Exis­
tence of Nonbinding International Agreements’ (1977) 71 AJIL 296.
115 See, e.g., J d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’
(2008) 17 EJI L 1090; J Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Netherlands JIL 173; and the special
Symposium on Soft Law of the Leiden Journal of International Law, (2012) 25 Leiden JIL 309.
136 A leading study in this regard is that of D Shelton (ed), Commitment and Compliance: The Role of Non­
Binding Norms in the International Legal System (OUP, 2000). Less enthusiastic about the role of soft law are
A Boyle and C Chinkin, The Making of International Law (CUP, 2007).
137 See, e.g., OECD Guidelines for Multinational Enterprises (last revised 2011), available at <http://
[Link]/guidelines>.
60 THE STRUCTURE OF INTERNATIONAL LAW

protection of the environment,138 and questions relating to the financing of terrorism.139

A cynical posture is not unwarranted: soft law can constitute a form of subterfuge, a
non-binding instrument that States can point to as a substitute for action. Being con­
structive for a moment, however, soft law can point to future directions for the law itself,
a political intention to take action that can set in motion a process leading to binding
legal rules. If adopted, the June 2021 proposal for the legal definition of a new interna­
tional crime of ecocide might be just such a step, with significant early momentum.140

THEORY AND DEBATES The Lawmaking Influence of the International

Law Commission

One controversy remains the influence of the ILC, a subsidiary organ of the General Assembly
which has the mandate of promoting the progressive development of international law and its
codification’ (ILC Statute, Art 2). Formally, of course, it is not a primary source of international
law; it does not produce treaties or generate custom. However, the Commissions thirty-four
members are elected by the General Assembly and represent all regions of the world; and over
the years they have produced detailed reports and commentaries that have proven substantively
influential on State practice and the drafting of treaties. As such, debate remains as to the extent
of their influence: are they merely the writings of distinguished publicists or something more?
Much of the Commissions appeal with States has been in its working methods, which con­
sist in a detailed, thorough analysis of State practice and possible instances of opinio juris, and
how these may evidence the emergence of a new customary legal rule. Moreover, in operation
the ILC tends systematically to invite comments and consultations from the General Assembly
and States. This State-centric and relatively cautious methodology has proved popular with
States and, as described earlier, the Commission’s work has long been cited approvingly by the
ICJ, on topics ranging from the continental shelf, the use of force, limitations on State immu­
nity, and the scope of compensation to be awarded as reparation. In this respect, the ILC’s
work is probably best understood as an ‘indirect’ but influential source of international law.
The Commission’s work has been particularly influential in relation to treaties and custom.
Regarding treaties, the ILC will study a topic and propose a set of draft articles which can be
taken up by the United Nations and trigger a process of treaty negotiation. Indeed, conven­
tions on diplomatic and consular relations, the law of treaties, and the law of the sea, grew out
of draft articles originally proposed by the ILC. As regards custom, many draft articles and
reports do not make it into the form of a convention but can prove influential as a codifica­
tion of custom, such as the articles on responsibility of States for internationally wrongful
acts responsibility, diplomatic protection, or the prevention of transboundary harm. In fact,

IW E-g-» the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on
the Environment and Development contained principles that later shaped State practice and opinio juris, and
influenced environmental treaties. See Chapter 19, Section 19.2.2.
See, e.g., the 2014 Basel Committee on Banking Supervision, ‘Sound Management of Risks related to
Money Laundering and Financing of Terrorism’, available at <[Link]
140 See Report of the Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text
(June 2021), available at <[Link] Recent legal developments
suggest increased endorsement of the concept, including the EU’s 2024 revisions of its Environmental Crimes
Directive 2024/1203 (2024), and national legislative proposals, including in Azerbaijan, Belgium, Canada, Fin­
land, Peru, and Sweden. See also the call for international recognition of the crime of ecocide in Report of the
Secretary-General, ‘Protection of Civilians in Armed Conflict’, UN Doc S/2024/385 (14 May 2024), para 45.
 SOURCES OF INTERNATIONAL LAW 61

much of the Commission’s recent work on non-binding instruments, such as its studies of
customary law, reservations to treaties, and even peremptory norms, has from the outset been
designed to provide a guide to States, rather than a potential source of treaty texts.
For further reading on the development of international law by the ILC, see F Bordin,
‘Reflections of Customary International Law: The Authority of Codification Conventions
and ILC Draft Articles in International Law’ (2014) 63 ICLQ 535; and D Azaria, ‘Codification
by Interpretation’: The International Law Commission as an Interpreter of International Law’
(2020) 31 EJ1L171.

2.4 Conclusion: the enduring relevance of sources

International law has traditionally derived the validity of its rules from State consent
and, due to its decentralized character, its sources doctrine often appears fiendishly
complex to the international law newcomer. However, the relative complexity of inter­
national legal thinking on sources should not mask the fact that, as with all legal systems,
the classification of legal sources is driven by an enduring quest for relevance. To under­
stand sources theory is to distinguish what law is from what law is not and, in so doing,
to preserve the autonomy of international law as a functioning system. Sources theory
provides reassurance for international lawyers that our discipline is a legal one; it is an
attempt to remove politics, values, and other extra-legal considerations from our craft.
For all this, we should not allow that professional reassurance to shield our eyes from
the emergence of relevant, dynamic processes through which the traditional processes
of law-creation are changing. Though there is an enduring reliance on Article 38 and,
with it, a sources theory reliant on the consent of States, the influence of non-State actors
in lawmaking continues to deepen, reflecting shifts in power within the system and
making the denial of politics increasingly difficult. With these struggles over politics
also come struggles over values, and in the next chapter the key question will be explored
as to whether international law has taken in certain values to the extent that they now
constitute superior norms, prevailing over all other norms of international law.

Further reading
G Abi-Saab, ‘Les sources du droit international—Un essai de deconstruction’ in E Jimenez de
Arechaga and M Rama-Montaldo (eds), Le droit international dans tin monde en mutation
(Fundacion de Cultura Universitaria, 1994), 29.
A measured, progressive account of the doctrine of sources in international law.
M Akehurst, ‘Custom as a Source of International Law’ (1974-5) 47 BYBIL 1.
For decades, perhaps the indispensable study of customary international law.
A D’Amato, The Concept of Custom in International Law (Cornell UP, 1971).
A refreshing account of customary law as a pattern of conduct and repetition that generates
new legal rules.
62 THE STRUCTURE OF INTERNATIONAL LAW

J d’AsPREMONT, Formalism and the Sources ofInternational Law (OUP, 2011).

Ambitious resuscitation of a formalist approach to the sources of international law.
A Boyle and C Chinkin, The Making ofInternational Law (CUP, 2007).
A broad survey of both sources doctrines as well as emerging lawmaking processes.
G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’ in Sym-
bolae Verzijil: presentees an Professeur JHW Verzijl, A FOccasion de son LXXieme Anniversaire
(Nijhoff, 1958), 153.
This classic piece remains highly influential in understanding the modern doctrine of sources.
D Kennedy, ‘The Sources of International Law’ (1987) 2 American University JI LP 1.
An incisive and welcome critique on the discourse surrounding the sources of international law.
V Lowe, ‘Are the Method and Character of Norm-creation Changing?’ in M Byers (ed), The Role
ofLaw in International Politics (OUP, 2000), 207-26.
An engaging essay by a leading academic and international law advocate.
A Pellet and D Muller, ‘Article 38’ in A Zimmermann, C Tomuschat, K Oellers-Frahm, and
C Tams (eds), The Statute of the International Court ofJustice (3rd edn, OUP, 2019), 819.
Often referred to as the 'flagship' chapter in the newly revised commentary, this piece is a
magisterial compendium of the Court's treatment of sources.
AE Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Recon­
ciliation’ (2001) 95 AJIL 757.
Extremely clear, this award-winning article engagingly sets out the modern operation of custom.
M Sorensen, Les sources du droit international (Munskgaard, 1946).
A classic French-language treatise written by a prominent Danish academic.
H Thirlway, The Sources of International Law (2nd edn, OUP, 2019).
A freshly updated and systematic survey prepared by an expert in sources theory, with dec­
ades of practice experience at the ICJ.