UNIT 2
SOURCES OF INTERNATIONAL LAW – DETAILED NOTES WITH CASE LAWS
Meaning of Sources of International Law
The term sources of international law refers to the recognised foundations from which
international legal rules derive their authority and through which States and courts identify
what the law is. Unlike domestic systems, there is no world legislature, so international law
develops in a decentralised manner through:
● State practice
● Mutual agreements (treaties)
● Accepted legal principles
The most authoritative list is found in Article 38(1) of the Statute of the International Court
of Justice (ICJ), which identifies:
1. Treaties
2. Customary international law
3. General principles of law recognised by civilised nations
It also recognises judicial decisions and teachings of publicists as subsidiary means to
determine the law.
Broad Classification of Sources
1. Primary / Formal Sources
● Treaties
● Customary international law
● General principles of law
2. Subsidiary / Secondary Sources
● Judicial decisions
● Juristic writings
3. Modern / Additional Sources
● Acts and resolutions of international organisations
● Unilateral acts of States
● Soft law instruments
1. PRIMARY / FORMAL SOURCES
A. Treaties and Conventions
Treaties are written agreements governed by international law (e.g., UN Charter, Vienna
Convention on the Law of Treaties). Once a State consents to be bound, the principle of pacta
sunt servanda applies—agreements must be kept.
Case Law: Reservations to the Genocide Convention (1951 ICJ)
(Important for treaty interpretation and State consent)
Facts
● Many States joining the Genocide Convention made reservations.
● Other States objected, arguing they diluted the treaty.
● The UNGA sought the ICJ’s opinion on whether such reservations were valid.
Issues
1. Can States make reservations while joining a multilateral treaty?
2. Must all other States accept the reservation?
3. What test determines whether a reservation is valid?
Judgment
● A reservation is valid if it is compatible with the object and purpose of the treaty.
● Unanimous acceptance is not necessary.
● States may still become parties even when making reservations.
Importance
● Introduced the “object and purpose” test.
● Incorporated later into Articles 19–23 of the Vienna Convention (VCLT).
● Strengthens treaty law as a primary source.
B. Customary International Law
Custom contains two essential elements:
1. State Practice – consistent and widespread behaviour of States.
2. Opinio Juris – belief that the practice is followed due to a legal obligation.
Examples: diplomatic immunity, freedom of the high seas, non-use of force except in self-
defence.
Case Law 1: North Sea Continental Shelf Cases (1969 ICJ)
Facts
● Germany, Denmark, and the Netherlands disputed how to delimit the continental shelf.
● Denmark and the Netherlands claimed that Germany was bound by the equidistance rule
in the Geneva Convention.
● Germany had not ratified the Convention.
Issues
1. Had the equidistance rule become customary law?
2. Was Germany bound by custom even as a non-party?
3. What constitutes valid customary international law?
Judgment
● The equidistance principle had NOT become a custom.
● State practice was not sufficiently uniform.
● Practice was not followed out of legal obligation (opinio juris).
Importance
➔ ICJ laid down the two-element test for custom:
◆ Widespread State practice
◆ Opinio juris
➔ Most authoritative case for customary international law.
Case Law 2: Asylum Case (Colombia v. Peru, 1950 ICJ)
Facts
● A Peruvian leader sought asylum in the Colombian Embassy.
● Colombia insisted Peru must grant safe passage due to a regional custom.
Issues
1. Does a regional custom obligate Peru?
2. What is the level of proof required to establish custom?
Judgment
● Peru was not bound.
● No consistent and uniform regional custom existed.
● Colombia failed to establish opinio juris.
Importance
● Custom must be continuous, consistent, and widely accepted.
● Highlights strict burden of proof in establishing custom.
C. General Principles of Law
These are fundamental principles common to major legal systems worldwide.
Examples:
● Good faith
● Res judicata
● Full reparation for wrongful acts
● Procedural fairness
They fill gaps when treaty and custom are silent, avoiding “non liquet”.
Case Law: Chorzów Factory Case (1928 PCIJ)
Facts
● The Chorzów Factory in Polish territory (formerly German) was seized by Poland.
● Germany demanded compensation.
Issues
1. Is Poland responsible for an internationally wrongful act?
2. What is the appropriate remedy or compensation?
Judgment
● Poland had violated international law.
● Court declared:
“Reparation must, as far as possible, wipe out all consequences of the illegal act.”
Importance
● Establishes the general principle of full reparation.
● Forms the basis of modern State responsibility.
2. SUBSIDIARY / SECONDARY SOURCES
A. Judicial Decisions
Judgments of the ICJ and other tribunals help identify and interpret existing law.
Article 59 states that ICJ decisions bind only the parties, not the world, but repeated reasoning
becomes persuasive.
B. Juristic Writings
Works of experts and bodies like the International Law Commission (ILC) help explain,
clarify, and interpret the law.
They do not create law but serve as valuable guidance.
3. MODERN / ADDITIONAL SOURCES
A. Acts and Resolutions of International Organisations
Security Council Resolutions
● Can be binding under the UN Charter (Chapter VII).
General Assembly Resolutions
● Non-binding but may contribute to custom formation or guide interpretation.
● Example: Universal Declaration of Human Rights (UDHR).
B. Unilateral Acts of States
A State may be bound by its public, clear, and intentional unilateral declarations.
Case Law: Nuclear Tests Cases (Australia v. France; NZ v. France, 1974 ICJ)
Facts
● France conducted nuclear tests in the Pacific.
● Australia & New Zealand challenged this before the ICJ.
● During proceedings, France publicly announced it would cease atmospheric tests.
Issues
1. Can unilateral statements create binding obligations?
2. Was France bound by its declarations?
Judgment
● ICJ held that France’s unilateral declarations were legally binding.
● The case became moot since France agreed to cease tests.
Importance
● Confirms unilateral acts as a modern source of obligations.
● States can bind themselves through their own conduct.
Conclusion
The sources of international law reflect its decentralised and evolving nature. Article 38(1)
remains the foundation, identifying treaties, custom, and general principles as the core sources.
Subsidiary sources like judicial decisions and scholarly writings help interpret these rules.
Modern developments — resolutions, unilateral acts, and soft law — show how international law
continually adapts to global needs.
Famous cases such as North Sea Continental Shelf, Asylum Case, Chorzów Factory,
Reservations to the Genocide Convention, and Nuclear Tests Cases illustrate how courts
apply and clarify the sources, shaping the structure of international law.