Sources of international law

The word ‘source of law’ (‘source de droit’, ‘Rechtsquelle’) has a variety

of interpretations.1 The English legal philosopher H.L.A.Hart

distinguishes between its use in a ‘material’ or ‘historical sense’ and in

a ‘formal’ or ‘legal’ sense.2 In the first non-legal sense it refers to a

causal or historical influence explaining the factual existence of a given

rule of law at a given place and time, for example, to show that a

certain contemporary rule of Dutch law may originate from Roman

law, or to state that the development of labour law has resulted from

the political action taken by trade unions. In the legal sense, the term

means the criteria under which a rule is accepted as valid in the given

legal system at issue. These criteria distinguish binding law from legally

non-binding other social or moral norms and the law de lege lata (the

law as it currently stands) from the law de lege ferenda (the law as it

may be, or should be, in the future).3 In this sense, the term ‘source’

has a technical meaning related to the law-making process and must

not be confused with information sources, research sources or

bibliographies on international law.4

In developed national legal systems there are definite methods of

identifying the law, primarily by reference to the constitution, legislation

(statutes) and judicial case law. In the decentralized international legal

system, lacking a hierarchical structure,5 the problem of finding the law

is much more complicated. There is no authority to adopt universally

binding legislation6 and no compulsory jurisdiction of international courts

and tribunals without the consent of states. In this system the same

subjects of international law7 that are bound by international rules and

principles have created them themselves.

The most important source of international law for centuries was

customary law, evolving from the practice of states. The recent attempt

to codify international law and the conclusion of multilateral treaties

in many important areas, such as diplomatic and consular relations,9

the law of war10 or the law of the sea,11 have sought to clarify the law

and to establish universally accepted norms. But customary law has

still retained its predominance over treaty law or other sources in many

other areas, such as, for example, state immunity12 or state

responsibility.13 The changes in international society since 1945 have

led to basic disputes on the sources of international law and it must be

noted at the outset that they have become an area of considerable

theoretical controversy. In particular, the two main traditional elements,

custom and treaties, are now often difficult to distinguish clearly.

Treaties

The Statute of the International Court of Justice speaks of ‘international

conventions, whether general or particular, establishing rules expressly

recognized by the contesting states’.17 The word ‘convention’ means a treaty,

and that is the only meaning which the word possesses in international law,

and in international relations generally. This is a point worth emphasizing,

because students have been known to confuse conventions with conferences,

or to mix up conventions in international law with conventions of the

constitution in British constitutional law. Other terms used as a synonym

for treaties, or for particular types of treaties, are agreement, pact,

understanding, protocol, charter, statute, act, covenant, declaration,

engagement, arrangement, accord, regulation and provision. Some of these

words have alternative meanings (that is, they can also mean something

other than treaties), which makes the problem of terminology even more

confusing.

Treaties are of growing importance in international law. The practice of

publishing collections of treaties concluded by a certain state or group of

states commenced during the second half of the seventeenth century.

Since 1945, in accordance with Article 102 of the U N Charter, more than 33,000 treaties have been registered with the United Nations,

several thousand of which are multilateral.18 As collectivism has replaced

laissez-faire, a large number of questions have become subject to

governmental regulation—and to intergovernmental regulation when

they transcend national boundaries. Modern technology, communications

and trade have made states more interdependent than ever before, and

more willing to accept rules on a vast range of problems of common

concern— extradition of criminals, safety regulations for ships and

aircraft, economic aid, copyright, standardization of road signs,

protection of foreign investment, environmental issues and so on. The

rules in question are usually laid down in treaties, with the result that

international law has expanded beyond all recognition in the last 140

years (although it must be pointed out that most of the rules are too

specialized to be dealt with in ordinary textbooks on international law).

Treaties are the major instrument of cooperation in international

relations, and cooperation often involves a change in the relative positions

of the states involved (for example, rich countries give money to poor

countries). Treaties, therefore, are often an instrument of change—a point

which is forgotten by those who regard international law as an essentially

conservative force. The general trend, particularly after the Second World

War, has been to enhance the role of treaties in international law-making,

partly in response to increasing interdependence, partly as a solution to

the controversies that exist between diverse groups of states as to the

content and validity of older customary rules.

To some extent treaties have begun to replace customary law. Where

there is agreement about rules of customary law, they are codified by

treaty; where there is disagreement or uncertainty, states tend to settle

disputes by ad hoc compromises—which also take the form of treaties.

For example, capital-exporting countries have concluded some 1000

bilateral treaties promoting and protecting foreign investment to clarify

the relevant legal framework

Law-making treaties and ‘contract treaties’

Treaties are the maids-of-all-work in international law. Very often they

resemble contracts in national systems of law, but they can also perform

functions which in national systems would be carried out by statutes,

by conveyances, or by the memorandum of association of a company.

In national legal systems, legislative acts of parliament are regarded as

sources of law, but contracts are not; contracts are merely legal

transactions. (Contracts create rights and duties only for the contracting

parties, who are very few in number, and it is generally agreed that a

‘source of law’ means a source of rules which apply to a very large

number of people.) Some writers have tried to argue that treaties should

be regarded as sources of international law only if they resemble national

statutes in content, that is, if they impose the same obligations on all

the parties to the treaty and seek to regulate the parties’ behaviour

over a long period of time. Such treaties are called ‘law-making treaties’

(traités-lois) and their purpose is to conclude an agreement on universal

substantive legal principles (i.e. human rights treaties, Genocide

Convention).20According to this theory, ‘contract-treaties’ (traitéscontrat),

that is, treaties which resemble contracts (for instance, a treaty whereby one state agrees to lend a certain sum of money to another

state) are not sources of law, but merely legal transactions.

However, the analogy between national statutes and law-making treaties

is misleading for two reasons. First, in national systems of law anyone who

is contractually competent (i.e. anyone who is sane and not a minor) can

enter into a contract, but parliamentary legislation is passed by a small

group of people. In international law, any state can enter into a treaty,

including a law-making treaty. Secondly, in national systems of law contracts

create rights and duties only for the contracting parties, who are very few in

number, whereas statutes of national law apply to a very large number of

people. In international law all treaties, including law-making treaties, apply

only to states which agree to them. Normally the parties to a law-making

treaty are more numerous than the parties to a ‘contract-treaty’, but there

is no reason why this should always be so.

The only distinction between a ‘law-making treaty’ and a ‘contract-treaty’

is one of content. As a result, many treaties constitute borderline cases,

which are hard to classify. A single treaty may contain some provisions

which are ‘contractual’, and others which are ‘law-making’. The distinction

between ‘law-making treaties’ and ‘contract-treaties’ is not entirely useless;

for instance, a ‘contract-treaty’ is more likely to be terminated by the

outbreak of war between the parties than a law-making treaty.21 But it is

too vague and imprecise to justify regarding law-making treaties as the

only treaties which are a source of international law. The better view is to

regard all treaties as a source of law. At any rate, the law of treaties applies

to both types of treaties.

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