I.

Introduction: What is International Law and

Where Do Its Rules Come From?
̌

International law, the rulebook for the global community, governs how
countries interact. Unlike domestic law, international law lacks a central
enforcement body, relying on states' agreement and cooperation. Key
questions include where these rules originate and how they become binding.
Article 38 of the International Court of Justice (ICJ) Statute provides the
answers by identifying the primary sources: international conventions
(treaties) and international custom.

Treaties are written agreements between states, governed by international

law. They are formed through negotiation, adoption, and consent, becoming
binding upon entry into force. Customary international law derives from
consistent state practice accompanied by a belief in legal obligation (opinio
juris). Identifying custom requires evidence of widespread, consistent
practice and the belief in its legal necessity.

Both treaties and custom are vital sources of international law, shaping state
behavior and fostering cooperation. Treaties offer clarity and explicit
consent, while custom provides universal application and adaptability. These
sources ensure predictability, stability, and peaceful relations in the
international community.

II. The Official List: Article 38 of the ICJ Statute[1]

Article 38(1) of the ICJ Statute outlines the sources the Court must apply in
settling disputes: (a) international conventions (treaties) explicitly
recognized by states; (b) international custom, based on general state
practice accepted as law; (c) general principles of law common to major legal
systems; and (d) judicial decisions and scholarly writings, as subsidiary
means to determine legal rules.[2]

The list prioritizes treaties—highlighting the centrality of state consent in

international law. Custom follows, reflecting implicit consent through practice
and belief. General principles fill gaps when treaties or customs are silent.
Judicial decisions and scholarly writings, while influential, serve to interpret
rather than create law.

Article 38 differentiates between primary sources—treaties, custom, and

general principles—which create obligations, and subsidiary means—judicial
decisions and teachings of publicists—that aid interpretation. ICJ rulings,
though binding only between parties, shape legal understanding. The term
“civilized nations” in Article 38(1)(c), rooted in outdated colonial language, is
now understood as referring to principles shared by major legal systems.

Despite its 1920s origins, Article 38 remains foundational, even as

international law evolves. In practice, courts increasingly rely on judicial
reasoning and evolving state behavior to shape customary and interpretive
international law.

III. International Conventions (Treaties):

International conventions, or treaties, are formal written agreements

between states governed by international law, as defined by the Vienna
Convention on the Law of Treaties (VCLT). Key elements include being an
agreement between states, being in written form, and being intended to
create legal obligations under international law. [3]

The creation process involves negotiation and drafting by authorized state

representatives, adoption of the final text, and authentication. States then
express formal consent to be legally bound, commonly through signature,
ratification (signing followed by domestic confirmation), or accession (joining
an existing treaty). A treaty becomes legally binding only when it "enters
into force," typically after a set number of states have consented.

Treaties can be bilateral (between two states, often for specific issues) or
multilateral (between multiple states, addressing broader concerns or
establishing general international rules, known as "law-making treaties").

The fundamental principle governing treaties is pacta sunt servanda

("agreements must be kept"), codified in VCLT Article 26. This means treaties
in force are legally binding on the parties and must be performed in good
faith. Significantly, VCLT Article 27 states that a country cannot use its
internal laws as justification for failing to meet its treaty obligations. This
principle underpins the reliability of international agreements. [4]

IV. Customary International Law:

Customary International Law (CIL) comprises unwritten rules emerging from

the consistent behavior of states coupled with their belief that this behavior
is legally required. Unlike written treaties, CIL acts like the international
community's common law, binding on almost all states unless a state
persistently objected during the rule's formation.

Establishing CIL requires two key elements. First, State Practice (the
objective element) demands widespread, consistent, and representative
actions by states over time. Evidence includes official statements, laws, court
rulings, and diplomatic actions. While consistency over time helps,
widespread and uniform practice can establish CIL relatively quickly.

Second, Opinio Juris (the subjective element) is the crucial belief among
states that the practice is mandated by law, not just followed out of habit,
convenience, or courtesy. This distinguishes legally binding custom from
mere usage.

Identifying CIL involves examining diverse sources like diplomatic

correspondence, national legislation, state actions in international forums,
and even treaties to prove both widespread practice and the accompanying
legal belief (opinio juris). Proving opinio juris is often complex, requiring
evidence that states act out of a perceived legal obligation, making CIL
identification sometimes challenging and debated.

V. Case Laws
North Sea Continental Shelf Cases (1969): Germany, Denmark, and the
Netherlands disputed shelf division. The ICJ ruled the treaty-based
"equidistance principle" hadn't become Customary International Law (CIL)
binding non-party Germany. The Court found insufficient consistent state
practice and, critically, no evidence states acted out of legal obligation
(opinio juris). This landmark case established that both elements – practice
and opinio juris – are essential for CIL, and treaty rules don't automatically
become custom for non-parties. [5]

Nicaragua v. United States (1986): Nicaragua accused the US of illegal

force. Despite a US reservation blocking direct treaty application, the ICJ
found the prohibitions on force and intervention existed independently as
CIL. Examining state practice and declarations (showing opinio juris), the
Court held the US bound by these CIL rules and had violated them. This
affirmed CIL can parallel identical treaty rules and fundamental norms
belong to both systems. [6]

Asylum Case (Colombia v. Peru) (1950): Colombia claimed a regional

custom allowed unilateral qualification of a political offense for asylum,
binding Peru. The ICJ rejected this, stating Colombia failed to prove the
required "constant and uniform usage" and opinio juris specifically among
the involved states necessary to bind Peru. The ruling established the high
burden of proof needed to demonstrate binding local or regional custom. [7]

Fisheries Case (UK v. Norway) (1951): The UK challenged Norway's

straight baseline method for its fisheries zone. The ICJ upheld Norway's long-
standing practice, adapted to its unique geography. It ruled that even if an
alleged CIL rule (like a ten-mile bay limit) existed, it wouldn't bind Norway
because Norway had consistently objected to its application. This case
famously established the "persistent objector" principle in CIL formation. [8]

Pulp Mills Case (Argentina v. Uruguay) (2010): Argentina claimed

Uruguay violated their bilateral treaty by authorizing pulp mills. The ICJ
applied the treaty meticulously, finding Uruguay breached procedural duties
(notification/consultation) but Argentina hadn't proven the mills violated
substantive environmental obligations under the treaty. This highlights the
pacta sunt servanda principle, the distinction between
procedural/substantive treaty rules, and the importance of specific treaty
language in resolving disputes.[9]

VI. How Conventions and Custom Interact

International conventions (treaties) and customary international law (CIL) are
intertwined. Treaties frequently codify existing CIL, putting established state
practices into writing. Conversely, widely ratified treaties can help crystallize
new CIL when states, even non-parties, adopt treaty provisions out of a
sense of legal obligation (opinio juris). Rules can also exist simultaneously
under both systems, as highlighted in the Nicaragua case.

Although treaties and custom generally have equal standing, conflicts are
often resolved by principles like lex specialis (specific rules prevail) or lex
posterior (later rules prevail). However, fundamental norms known as jus
cogens (e.g., prohibition of genocide) stand above both, rendering any
conflicting treaty or custom void. This dynamic interaction balances state
consent with essential community values.[10]

VII. The Importance of These Sources

International conventions (treaties) and customary international law (CIL) are
fundamental to the international legal system, each playing a crucial role.

Treaties provide clarity and precision because they are written documents
based on the explicit consent of states, aligning with state sovereignty. They
enable detailed regulation of complex international issues (like trade or
environmental standards) and are vital tools for cooperation, allowing states
to solve common problems and establish international organizations.

Customary law, conversely, generally applies universally to all states

(except persistent objectors), providing a baseline set of rules. It is
adaptable, evolving with changing state practice and values without needing
formal amendment processes. CIL fills gaps where treaties don't exist or
aren't widely ratified and often embodies fundamental international
principles like non-intervention and sovereign equality. [11]

Together, treaties and custom supply the bulk of rules governing

international relations, promoting predictability, stability, and peaceful
cooperation. Respecting treaty obligations (pacta sunt servanda) and
adhering to customary norms builds essential trust and credibility among
nations, making these sources indispensable for maintaining international
peace, security, and cooperation in an interconnected world. [12]

Footnotes:
[0] Statute of the International Court of Justice, Art. 38(1).
[1] Statute of the International Court of Justice, Art. 38(1).
[2] Vienna Convention on the Law of Treaties, 1969.
[3] Vienna Convention on the Law of Treaties, 1969.
[4] North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands), ICJ Re-
ports 1969.
[5] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
ICJ Reports 1986.
[6] Asylum Case (Colombia v. Peru), ICJ Reports 1950.
[7] Fisheries Case (UK v. Norway), ICJ Reports 1951.
[8] Vienna Convention on the Law of Treaties, Art. 26.
[9] Vienna Convention on the Law of Treaties, Art. 53.
[10] ICJ, Fisheries Case (UK v. Norway), 1951 - concept of persistent objector.
[11] Vienna Convention on the Law of Treaties, Art. 26.