Nature of International Law

Ancient Worlds

- The ambiguity of the term ‘international law’ leads to various different answers to the
question of when international law ‘began.’
- If by ‘international law’ is meant merely the ensemble of methods or devices which give
an element of predictability to international relations (as in the silent-trading illustration),
then the origin may be placed as far back as recorded history itself.
- If by ‘international law’ is meant a more or less comprehensive substantive code of
conduct applying to nations, then the late classical period and Middle Ages was the time
of its birth.
- If ‘international law’ is taken to mean a set of substantive principles applying uniquely to
states as such, then the seventeenth century would be the starting time.
- If ‘international law’ is defined as the integration of the world at large into something like
a single community under a rule of law. Then the nineteenth century would be the
earliest date.
- If ‘international law’ is understood to mean the enactment and judicial decisions of a
world government, then its birth lies (if at all) somewhere in the future-and, in all
likelihood, the distant future at that.

Ancient Greece

- Ancient Greece adopted two institutions from oriental civilization: (1) the technique of
treaties and (2) the art of diplomacy.
- Added two on its own (1) international arbitration and (2) proxeny (state hospitality)
which is the origin of consular protection of foreigners.
- Religious considerations such as (1) war should be avoided (2) soldiers killed in battle
were entitled to a burial (3) prisoners were to be ransomed and exchanged or slaved but
not killed.
- Not considered ‘law’ but they were set of rules for the proper conduct of relations
between Greek polis to describe the political organization of cities.
- Imperial Rome’s contribution was the development of:
o Jus fatiale consisting of religious rules which governed Rome’s external relations
and formal declarations of war which, inter alia, recognized the inviolability of
ambassadors and was at the origin of the distinction between ‘just’ and ‘unjust’
war; and
o Jus gentium which governed relations between Roman citizens and foreigners. It
became an essential part of Roman law and thus greatly influenced all European
legal systems and, through them, public international law.
- The doctrine of ‘just’ war by Cicero.
 o He said: ‘there is even such a thing as a law (jus bellicum) and the terms of the
oath must often be observed with an enemy…Regulus would have no right to
violate by perjury the terms and agreements made with a foreign enemy…’
o The doctrine of the universal law of nature known as ‘natural law’.

The Universalist Outlook: Medieval Natural Law

- The European Middle Ages became the great age of natural law thought.
- Natural law conceptions developed under the umbrella of the Catholic Church.
- The idea was not specifically Christian in its inception, but rather was a legacy of the
classical Stoic and Roman legal traditions.
- The dominant tradition represented by Thomas Aquinas was rationalist in outlook,
holding the content of the natural law to be susceptible of discovery and application by
means of human reason rather than of revelation
- There continued to be, as in the ancient period, a distinction between the jus natural and
the jus gentium.
- The jus gentium was much lesser than the two, being seen largely as an application of
the broader natural law to specifically human affairs.
- Sometimes was regarded as comprising universal customs of purely human creation-and
therefore as a sort of supplement to natural law.
- It was collection of laws common to all nations, affecting individuals in all walks of life,
from the highest to the lowest and dealing with all aspects of human social affairs-
contract, property, crime and the like.
- States like private persons, were permitted lawfully to wage war for such purposes as the
punishment of wickedness or generally for the enforcement of the law but not for
vainglory or conquest or oppression.
- This in fact was the conceptual kernel of natural law’s most outstanding contribution to
international law: the doctrine of the just war.

The Pluralist Outlook: The Italian City-States

- The tension between the universalistic and the pluralistic outlook is revolved around the
debate over the legal status of the various ‘independent’ city-states of northern Italy.
- These obtained substantial de facto independence from the Holy Roman Empire in the
late twelfth century, when the cities of the Lombard League defeated the forces of
Emperor Frederick I.
- There was, however, considerable debate over what this ‘independence’ really meant.
- Two of the most prominent medieval lawyers Bartolus and his student Baldus concluded
that the cities were independent in the sense of being wholly self-governing and
independent of one another, but that, in their relations inter se, they continued to be
subject to rules of the empire.
Developments in State Practice

- It is from the pluralist rather than universalist side of the great medieval conceptual
divide that we must look for innovations in State practice.
- Much of the state practice in the Middle Ages consisted of traditional; ways inherited
from ancient times.
- The area of diplomatic relations is an example, with diplomats increasingly being
accorded a broad degree of immunity from judicial process in host states.
- Beginning in about the eleventh century, European (chiefly Italian) States began to
conclude bilateral treaties that spelled out various reciprocal guarantees of fair
treatment.
- These agreements, sometimes concluded with Muslim States, granted a range of
privileges to the foreign merchants based in the contracting States, such as the right to
use their own law and courts when dealing with one another.
- Certain aspects of the conduct of war witnessed a high level of refinement in the Middle
Ages-most notably the law on the ransoming of POWs (a welcome step forward from the
alternatives of enslavement and killing).
- The Middle Ages-Two sets of truly international rules developed:
o Lex marcatoria which consisted of rules of conduct and fair dealing between
merchants.
 The commercial activities required the establishment of a common legal
framework.
o Maritime customary law which maritime customs and usages were formed.
 The rules of the sea based on the Rhodian Sea Law were compiled into
widely recognized collections.

From 1648 Peace Treaty of Westphalia to the 1815 Congress of Vienna

- The period of classical international law.

- The 1648 Treaty of Westphalia recognized the principles of sovereignty, territorial
integrity and the equality of States.
- It legitimized the principle of non-interference in the affairs of a State and recognized
that a State was independent from the church.
- The treaty established a system of balance of power which lasted until the French
Revolution and the Napoleonic Wars, and was aimed at preventing wars.
- The intellectual support for new ideas was provided by scholars, in particular the Anglo-
Dutch School represented by Hugo Grotius and Alberto Gentilli.
- At the end of eighteenth century, the enlightenment ideals supporting the aspirations of
the British colonies in North America fighting for independence from the British
monarchy and supporting the French people and fighting the France’s monarchist
tyranny, feudal aristocratic privileges and the Catholic clergy had great influence on the
development of human rights and the principle of self determination.
From 1815 Congress of Vienna to the outbreak of World War 1 in 1914

- The 1815 Congress of Vienna codified the law on diplomatic agents and missions,
prohibited slave trading and laid the foundations for the free navigations of rivers which
flow through at least two European States.
- The main features of international law during the period from 1815 to 1914 were the
principles of sovereignty, balance of power, legitimacy and equality between nations.
- The unorganized character of the international community, which was composed of a
multitude of sovereign States legally equal;
- The acceptance of war as the ultimate instrument of enforcing law and safeguarding
national honor and interest;
- The recognition of States as the only subjects of international law.

The positivist revolution

- The major feature of the nineteenth century was the dominant role of positivism.
- The expression ‘positive law’ refers to the man-made law of particular States, in contrast
to divine law (i.e. the command of God) or natural law.
- What was distinctive about positivism as a school of jurisprudential thought was the
doctrinal insistence that positive law is the only true law, i.e., the wholesale and
principled rejection of natural law as a valid or binding guide to conduct.
- One of the most central aspect of positivism was its close attention to questions of the
sources of international law, and in particular, to the proposition that international law
was fundamentally an outgrowth or feature of the will of the States of the world.
- Rules of law were created by the States themselves, by consent, whether express (in
written treaties) or tacit (in the form of custom).
- International law must now be seen as a law between States and not a law above States.
- International law, in other words, was now regarded as a corpus of rules arising from, as
it were, the bottom up as the conscious creation of the States themselves, rather than as
a pre-existing, eternal, all-enveloping framework in the manner of the old natural law.
- International law was now seen. So to speak, a world of fragments, an accumulation of
specific, agreed rules, rather than as a single coherent picture.
- The 19th century was the century of positivism which was introduced by French
philosopher Auguste Compte.
- He posited that humanity had gone through three stages of development: theological
which focused on religious idea, the metaphysical which concentrated on legalistic and
jurisprudential ideas; and “positive” which rejected the past superstitions, ideas and
dogmas to focus on scientific studies of objectively ascertainable facts.
- The positivist theories were developed by john Austin and Jeremy Bentham and came to
dominate jurisprudential thinking in general, including the theory of international law.
Is International Law really Law?

- In The Province of Jurisprudence Determined (1954)

o Austin reasoned that ‘proper’ law is ‘positive’ law and consists of a series of
commands or edicts issued by a sovereign who habitually received obedience
from subjects obeying such commands.
o Such commands are backed by threat of sanctions for breaches or disobedience.
o He saw a sovereign as an absolute authoritative institution that was indivisible
and not subject to other entity.
o He conceived that the law as positive creation or result of the will of the
sovereign.
o Strictly speaking, ‘every law properly so called is a positive law.’
o Since international law does not have a central authority, similar to sovereign,
which creates law or issues commands for obedience, Austin argued that
international law is not positive law.
o Rules of international law did not qualify as rules of positive law by this test, not
being command of any sort, were placed by Austin in the category laws
‘improperly so called.’
o He regarded international law as positive morality rather than law.
- The status of international law as ‘law’ has been challenged at both the theoretical by
John Austin (1790-1859) and by HLA Hart (1907-1992) and at the practical level
o The main arguments against the existence of international law as ‘law’ is the
international law does not have any legislature, judiciary or executive within the
ordinary understanding of these terms, responsible for creation, interpretation
and enforcement of that law.
- The most convincing arguments in favor of the existence of international law are that
States recognize and observe international law with the consequence that there is
substantial order in international relations and the international law is practiced on a
daily basis by international lawyers, intergovernmental organizations and other non-
states actors and applied by domestic and international courts.
- In International Law and the Controversy Concerning the Word “Law’” Glanville Williams
(1954) takes a different approach to the definition of law.
o He argues that a word such as ‘law’ has multiple meanings in multiple contexts.
o Consequently, ‘the only intelligent way to deal with the definition of a word of
multiple meaning like ‘law’ is to recognize that the definition, if intended to be of
the ordinary meaning, must itself be multiple.
- If William’s approach were adopted there would be no difficulty in resolving the issue as
to whether international law is law, because the word ‘law’ can be used in one sense to
describe the rules in the domestic setting, and in a different sense to describe those in
the international context.
 o In his view, words do not necessarily have a ‘single true meaning’ and thus the
word ‘law’ is used only as a label to describe certain phenomenon or state of
affairs.
o So what matters is not the word used, but the existence of that idea or
phenomenon. Thus the phrase ‘international law’ uses the word ‘law’ to describe
the orderly arrangements in the international sphere.
o In law, then, what are the usual general characteristics that may be identified as
basis for a definition?
o Even though the details of the definition of law may vary, depending on different
theorists and what they choose as the essential elements of law, there is general
agreement that ‘law broadly consists of enforceable rules established by common
consent or by an authorized institution to regulate human conduct; breaches of
these rules attract sanctions.’
o The issue is whether international law has these characteristics?

Definition of International Law

- Prof Shearer defined international law as body of law which is composed for its greater
part of the principles and rules of conduct which states feel themselves bound to
observe, and therefore, do commonly observe in their relations with each other, and
which includes also:
o The rules of law relating to the functioning of international institutions or
organizations, their relations with each other, and their relations with states and
individuals; and
o Certain rules of law relating to individuals and non states so far as the rights or
duties of such individuals and non-state entities are the concern of the
international community.
- In SS Lotus Case ( France v Turkey), the PCIJ provided the following definitions:
o International law governs relations between independent states. The rules of law
binding upon states therefore emanate from their own will as expressed in
conventions (treaties) or by usage generally accepted as expressing principles of
law established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims.
- The Restatement (Third) of Foreign Relations Law of the United States provides the
following definition:
o International law, as used in this Restatement, consists of rules of general
application dealing with the conduct of states and of international organizations
and with their relations inter se, as well as with some of their relations with
persons whether natural or juridical.
Enforcement of International Law

- The fact that international law has no centralized process of enforcement does not mean
that international law is not obeyed. A state obeys international law because:
- The prospective long-term advantage of compliance prevails over any short term
advantage resulting from violation of international law;
- It wants to maintain its good reputation; it fears retaliatory measures or measures based
on reciprocity that may be taken by a victim state (the three Rs compliance)
- The UNSC may take various measures, including the use of force, under Chapter VII of
the UN Charter to force a State to comply with international law.
- It is bound under many international treaties to accept the compulsory jurisdiction and
the judgments of a body established by treaty to deal with disputes arising out of it.
- It fears public opinion both at home and abroad.

Situations to which IL is relevant

- Co-operation
o States are naturally independent in many ways and international law facilitates
co-operation;
- Co-existence
o States have to co-exist with one another and a way of facilitating this is to define
their relationship by making treaties and other consensual agreements; and
- Conflict
o Here, the role of international law is confined to two main functions, i.e. the
prescribing of technical rules of conduct and the keeping of any conflict to a
minimum.
Sources of IL

Art. 38 of Statute of the ICJ

- (1)The court, whose functions is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
o (a)international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
o (b)international custom, as evidence of a general practice accepted as law;
o (c)the general principles of law recognized by civilized nations;
o (d)subject to the provision of Article 59, judicial decisions and the teaching of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
- (2)This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agreed thereto.

Five distinct sources of law that could be derived from Art. 38(1) is thus:

- Treaties
- International Customs
- General principles of international Law
- Judicial decisions
- Writing of publicicsts
- Equity a source additional also originates from Article 38.
- Where there is little doubt that Article 38 does embody the most important sources of
international law, it provides an incomplete list of them.
- It envisages sources of international law from a strictly jurisdictional perspective but
being a text adopted more than 90 years ago, it does not take into account the evolution
of international law.

Critization of Article 38

- It treats judicial decisions and the writings of publicists as being of equal importance,
while in practice judicial decisions have more weight that the writings of publicists.
- There is a discrepancy between English and the French texts of Article 38 as to the role of
judicial decisions and the writings of publicists which are referred to as ‘auxiliary’ in the
French version and as ‘subsidiary’ in the English version. Both words do not have the
same meaning.
- It is worded very generally and thus provides little assistance in resolving the issue of the
hierarchy of sources. Article 38 indicates that an order of importance, which in practice
the Court may be expected to observe, although it does not address the issue of a
conflict between difference sources of law.
 - It does not reflect the evolution of international law. Thus, the reference to international
principles ‘recognized by civilized nations’ appear today as at best archaic and at worst
insulting, implying as it does that some nations may not be civilized.
o Acts of international organizations which have greatly contributed to the
formation of international law are not mentioned in Article 38.
o Moreover, the concepts of jus cogens, recognized by the 1969 Vienna convention
on the Law of treaty (VCLT), endorsed by the ICJ and other international courts
and tribunals and which plays a fundamental role in modern international law, is
not part of Article 38.
o It is debatable whether declarations made by a state or group of states which
produce binding legal effects are to be regarded as a distinct source of
international law.
- It does not reflect the importance of non-binding sources. Contemporary international
law non-binding rules, the so called soft law, which emanates from states and non-states
actors, although not a source of law, plays an increasingly important role in the
international law making process.

Treaties

- Treaty can be defined as an agreement (usually written) between two or more states,
governed by international law and intended to create legal obligations.
- Distinction between law making treaties (normative treaties) and treaty contracts.
- Law making treaties lay down rules of general or universal application and are intended
for future and continuing observance.
- Treaty contracts resemble contracts in that they are concluded to perform contractual
rather than normative functions (e.g. building an aircraft).
- They are entered into between two or only a few states and deal with particular matters
concerning those states exclusively.
- Such treaties like contract, expire when the parties have performed their obligations (e.g.
build the aircraft).

International Custom

- A customary rule requires the presence of two elements:

- An objective element consisting of a relatively uniform and constant state practice;
- A psychological element consisting of the subjective conviction of a state that it is legally
bound to behave in a particular way in respect of a particular type of situation. This
element is usually referred to as the opinio juris sive necessitatis.
- The objective element:
o This is normally constituted by the repetition of certain behavior on the part of a
state for a certain length of time which manifest a certain attitude, without
ambiguity, regarding a particular matter.
 o However, as no particular duration is required for practice to become law, on
some occasion instant customs come into existence.
o For that reason, a few repetitions over a short period of time may suffice or many
over a long period of time or even no repetition at all in so far as an instant
custom is concerned.
o However, the shorter the time, the more extensive the practice would have to be
to become law.
- In North Sea Continental Shelf, the following principles has been laid down:
o A practice must be constant and uniform, in particular with regard to the affected
states, but complete uniformity is not required.
o It would suffice that conduct is generally consistent with the rule and that
instances of practice inconsistent with the rule are treated as breaches of that rule
rather than as recognition as a new rule.
o So far as the generality of the practice is concerned, this will usually mean
widespread but not necessary universal adherence to the rule.
- Indeed, custom may be either general or regional.
- General customs apply to the international community as a whole.
- Local or regional customs apply to a group of states or just two states in their relations
inter se.
- In Asylum Case, the ICJ held that the party relies on a custom must prove that the rule
invoked by it is in accordance with a constant and uniform usage practised by the states
in question.
- In Right of Passage over Indian Territory Case (Portugal v India), the ICJ accepted
argument that a rule of regional custom existed between India and Portugal.
- The 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.
- The subjective element of opinion juris sive necessitates
o To assume the status of customary international law the rule in question must be
regarded by states as being binding in law, i.e. that they are under a legal
obligation to obey it.
o This is a sort of tautological statement i.e. state practice is not law unless state
consider it as law.
o Nevertheless, the main purpose of the opinio juris sive necessitatis is to
distinguish between a customary rule and mere usage followed out of courtesy
or habit.
- Rules of international comity is simply based upon a consistent practice of States not
accompanied by any feeling of legal obligations, e.g. the saluting by a ship at sea of
another ship flying a different flag.
 o The distinction between those international rules which crate a legal obligation
and those which a state follows without being obliged to do so is illustrated in
the SS Lotus Case (France v Turkey):
o The question before the court was whether Turkey had the jurisdiction to try the
French officer of a French ship which had, through his alleged negligence,
collided with a Turkish merchant ship on the high seas, causing loss of life.
o Turkey argued that in the absence to the contrary, there was a permissive rule
empowering her to try the officer.
o France, however, argued that there was a customary rule imposing a duty on
Turkey not to try the officer as previous practice showed that ‘question of
jurisdiction in collision cases…are but rarely encountered in the practice of
criminal courts…in practice prosecutions only occur before the Courts of the state
whose flag is flown.’
o The Court rejected the French argument, stating:
 ‘Even if the rarity of the judicial decisions to be found among the reported
cases were sufficient to prove in point of fact the circumstances alleged
by the agent for the French government, it would merely show that states
had often, in practice, abstained from instituting criminal proceedings,
and not that they recognized themselves as being obliged to do so; for
only if such abstention were based on their being conscious of having a
duty to abstain would it be possible to speak of international customs.
The alleged fact does not allow one to infer that states have been
conscious of having such a duty…’
- The persistent objector rule
o If during the formative stage of a rule of customary international law a state
persistently object to that developing rule it will not be bound by it.
o This rule is known as the persistent objector rule.
o Once a customary rule has to come into existence, it will apply to all states except
any persistent objectors.
o However, as objecting state, on order to rely on the persistent objector rule,
must:
 Raise its objection at the formative stage of the rule in question;
 Be consistent in maintaining its objection;
 Inform other states of its objection. This is particularly important with
regard to a rule which has been almost universally accepted.
 If a state remains silent, its silence will be interpreted as acquiescence to
the new rule.
 The burden of proof is on the objective state.
- Relationship between treaties and international customs
o Relationship is complex.
o They co-exist, develop each other, and sometimes clash.
 o If there is a clash between a customary rule and provision of a treaty then,
because they are of equal authority (except when the customary rule involved is
of a jus cogens nature) whereupon being superior it will prevail, the one that is
identified as being the lex specialis will prevail,
o The lex specialis will be determined contextually.
- Special rules of customary international law jus cogens and rules creating erga omnes
obligations
o Jus cogens rules represent the highest source in the (informal) hierarchy of
sources of international law.
o The emphasis of jus cogens obligations is on their recognition by the
international community ‘as a whole.’
o The emphasis of erga omnes is on their nature. It mentioned embody moral
values which are of universal validity.
o They are binding because they express moral absolutes from which no state can
claim an exemption whatever its political, economic and social organizations.
o The legal consequences of violating erga omnes obligations differ from those for
breach of the rules of jus cogens
o In addition to the consequences deriving from a breach of erga omnes
obligations further consequences, specified in Article 53 of the Vienna
Convention on the Law of Treaties (the VCLT), follow from violations of the rules
of jus cogens.

General principles of International Law

- If there is no treaty relevant to a dispute or there is no rule of customary international

law that can be applied to it, the ICJ is directed under Article 38 of the Statute, to apply
general principles of international law.
- Still, no consensus among legal scholars as to the exact quality of this source.
- To avoid gaps in the law.
- General principles of fairness and justice which are applied universally in legal system
around the world.
- Laches, good faith, res judicata, impartiality of judges etc.

Judicial Decision

- As there is no binding authority of precedent in international law, international court and

tribunal cases do not make law.
- Judicial decisions are, therefore, strictly speaking not a formal source of law.
- However, they clarify the existing law on the topic and may, in some circumstances,
create a new principle in international law.
- They can also be considered evidence of state practice.
- Article 59 of the ICJ Statute ‘the decision of the court has no binding force except
between the parties and in respect of that particular case.’
 - However, the court itself frequently uses its previous decisions as authority in later cases.
- North Sea Continental Shelf show that the court can contribute significantly to the
development of customary law.
- In connection with the jurisprudence of the court on maritime delimitation…that the
tendency of the court to follow and apply earlier decisions rather than to investigate the
practice of States supposedly creative of custom had led to a situation in which it might
be said that maritime delimitation law was judge-made law rather than customary law.

Writing of publicists

- This source generally only constitutes evidence of customary law.

- However, learned writings can also play a subsidiary role in developing new rules of law.
- The impact of writers on the corpus of international law is never capable of scientific
analysis.
- The degree to which judges of the ICJ rely on published works (other than their own!) is
rarely made clear as the practice of the court is not to cite the views of scholars in
decision, although legal representatives before the court frequently refer to publicists in
their arguments.

Equity

- This is a complex concept.

- Under Article 38(1) (c) of the ICJ Statute equity is understood to be:
- A general principle of international law and thus may be considered as a material source
of law.
- A way of infusing elements of reasonableness and ‘individualized’ justice whenever law
leaves a margin of discretion to a court in deciding a case. This is equity which operates
within the boundaries of law (equity intra legem).
- Under Article 38 (2), equity means that a decision may be made ex aequo et bono, i.e.
the court should decide the case not on legal considerations but solely on what is fair
and reasonable in the circumstances of the case (equity contra legem).
- However, the parties must expressly authorize the court to decide a case ex aequo et
bono. So far, the ICJ has never delivered any judgment based on Article 38 (2).

Secondary law of IGOs

- There is disagreement whether secondary acts adopted by IGOs constitute a source of

law or whether, being a derivative source of law, they do not form part of general
international law.
- It is important to make a distinction between primary and secondary law of IGOs.
- Primary laws refer to the founding treaties, i.e. treaty establishing the relevant IGOs.
- Secondary law refer to acts adopted by IGOs on the basis of primary law.
- Under traditional international law, secondary acts cannot be qualified as a separate
source of international law.
 - They are neither binding, nor abstract, nor general rules but derive from the founding
treaties, concern a specific area of law and produce legal effects only in respect of
member states of the relevant IGOs.
- However the positivist approach has been challenged by the establishment of IGOs
having almost universal membership (e.g. UN) and by globalization which entails not
only the increasing interdependence of states but also the need to find swift and
appropriate solutions to new problems facing the international community.
- The better view, therefore, is that the secondary law of IGOs constitutes an important
source of international law.

Declarations an uncertain source

- Whether a declaration by states is a source of international law depends on the context

in which it has been made.
- It is debatable whether declarations which produce legal effects are a source of
international law.

Soft Law

- Non-binding rules of international law are called ‘soft law’ whilst binding rules are
considered as ‘hard law.’
- Soft law is of relevance and importance to the development of international law because
it:
o Has the potential of law-making, i.e. it may be a starting point for later
‘hardening’ of non-binding provisions (e.g. UNGA resolution may be translated
into binding treaties).
o May provide evidence of an existing customary rule.
o May be formative of the opinio juris or a state practice that creates a new
customary rule.
o May be helpful as a means of a purposive interpretation of international law.
o May be incorporated within binding treaties but in provisions which the parties
do not intend to be binding.
o May in other ways assist in the development and application of general
international law.
o The importance of soft law is emphasized by the fact that not only states but also
non-state actors participate in the international law making process through the
creation of soft law.
- Nevertheless, soft law is made up of rules lacking binding force, and the general view is
that it should not be considered as an independent, formal source despite the fact that it
may produce significant legal effects.

Codification of International Law: The contribution of the ILC

- The ILC established by the GA of the UN in 1947 is made up of 34 legal experts
representing the world’s major legal system.
- The two main task of the ILC are:
o The codification of international law, which is defined as the more precise
formulation and systematization of the existing customary rules of international
law.
o The progressive development of international law, which involves the creation of
new rules of international law either but means of the regulation of a new topic
or by means of the revision of the existing rules.
- Since its inception the ILC has fulfilled its tasks with great professionalism and
dedication, producing numerous high quality international treaties, declarations
resolutions and model laws.