INTERNATIONAL LAW ASSIGNMENT

ON

SOURCES OF INTERNATIONAL LAW

Submitted by:

SYEDA MEHAR EJAZ

(Self-finance)

Roll no: 56

B.A.LL.B

4th Semester

Faculty of Law

Jamia Millia Islamia

In

April, 2018

Under the guidance of

Dr. Noorjahan Momin

Assistant Professor

Jamia Millia Islamia

 INTRODUCTION

International law is generally regarded as set of rules accepted generally as binding between
States and between Nations. One can say that it acts as a framework for practice of stable and
organized international relations. But, one may ask where International Law does comes from or
how is it made? The changes in International community have led to fundamental disputes on the
sources of International Law and it has become an area of controversy.

Traditionally, custom and treaties are treated as two sources of International law. However, in
recent years jus cogens, which is hierarchically superior to all other rules of International law has
emerged. Article 38 (1) of the Statute of the International Court of Justice states specifically
about what would be regarded as sources of International law and according to it, Sources of
International Law includes a variety of sources such as treaties, international customs, scholarly
writing, judicial decisions and general principles of law as recognized by states around the world.

So, one can say that sources of International law are the materials and processes out of which the
rules and principles regulating the international community are developed and it would not be
wrong to say that these sources are influenced by range of political and legal theories.

The current assignment aims at discussing the various sources of International law basically with
respect to Article 38 (1) of the Statute of the International Court of Justice.
SOURCES OF INTERNATIONAL LAW

The sources of International law, can be said to be the rules and principles based on which
International Law is discovered or created, evolves and develops into the law that is binding
amongst the sovereign states.

But, there is no particular answer if we seek to look out for the questions like where International
law comes from or how is it made. There is “no code for International law” and neither does it
have a Parliament or anything that can be described as legislation. In absence of any such clear
answer, The Statute of International Court of Justice is the starting point for the sources of
International law.

STATUTE OF INTERNATIONAL COURT OF JUSTICE

In absence of any legislation The Statute of International Court of Justice specifically states what
sources would be regarded as sources of International Law.

ARTICLE 38

1. The Court, whose function is to decide in accordance of International Law such disputes
are submitted to it, shall apply:
a.) International conventions, whether general or particular establishing rules expressly
recognized by the contesting states.
b.) International custom, as evidence of a general practice accepted as law;
c.) The general principles of law recognizes by civilized nations;
d.) Subject to the provisions of Article 59, judicial decisions and the teachings 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 agree thereto.1

Some writers have criticized the Article that it doesn’t enlist all the sources. Although, it
doesn’t provides a whole complete list according to the satisfaction of the writers but, it

1
Dr. H.O. Agarwal, International law and Human Rights, 17 th Ed., 2010, Central law publications, Allahabad, India.
 provides a useful starting point obviously. A point which is important is that the Court is
expected to apply the above sources in the same order as they have been given2. So, based
on the Article 38 of The Statute of International Court of Justice, the various sources have
been elaborated.

CUSTOMARY INTERNATIONAL LAW

As it is the oldest source and the foundation stone for modern international law, it is convenient
to start with this source.

Customary International law refers to the International obligations arising from the established
practices of the states. International Law Association has defined customary international law as
“something created and sustained by the constant and uniform practice of states in circumstances
that give rise to legitimate expectation of similar conduct in future”.3 There are two elements of
Customary international law, first being state practice (usus) and the other being the belief that
such practice is allowed or prohibited, depending on nature of the rule, as a matter of law (opinio
juris). The ICJ has rightly put this in The North Sea Continental Shelf4 cases,

‘Not only must the acts concerned must be settled state practices, but must also be such, or
carried out in a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule requiring it. ….. the States should that they are conforming to what amounts
to a legal obligation’.

It was held by the Court in Advisory Opinion on the Use of Nuclear Weapons (1996) that, “No
rule can be created on opinio juris without the state practices.

So, far as these state practices are concerned, it includes practices by Government of a State as
well as the courts and parliament. The fact that some States practices torture doesn’t mean that
no sufficient practice is outlawing it. The court in Nicaragua v. Unites States of America (1986),
stated,

2
Ibid.
3
International judicial monitor-General principles of International law, available at,
http://www.judicialmonitor.org/archieve_1206/generalprinciples.html, last visited, 20th March, 2019.
4
Federal Republic of Germany v. Denmark and the Netherlands, I.C.J. Reports 1969, p.3.
‘ In order to deduce the existence of customary rules the court deems it sufficient that the
conduct of the states in general should be in consonance with such rule and that instances of state
conduct inconsistent with a given rule should have been treated as a breach of that rule as
indication of the recognition of a new rule’.

Regarding opinio juris, the normal definition of belief in obligation is not satisfactory as because
it ignores the fact that many rules are regarding sovereignty for which the real opinio juris is a
belief in right and not in obligation.

The Court in Central Gold Mining Co. Ltd. v. R5 ruled that for valid international custom it is
necessary that it should be proved by satisfactory evidence that the custom is of such a nature
that it has got a general consent of states and no civilized state should oppose that.

Similarly, in The right of passage over Indian Territory case6, main characteristics of customary
rules was concluded as,

a.) Both opinio juris and state practice should be proved.

b.) Both concepts are interconnected.
c.) State practice is conveyed through administrative acts, legislation and decisions of the
courts etc.

Customs being the oldest source had an important role in developing a comprehensive
International law. At present, customary rules or customs has developed to higher dimensions in
the form of Human rights, obligation to protect rights by states, etc.

TREATIES

The first although not the foremost source of International law is the International treaties as laid
down in Article 38 of the Statute of ICJ. Article 2, of The Vienna Convention on the Law of
Treaties, 1969 define treaty as, ‘ an International agreement concluded between States in written
form, governed by international law, whether embodied in a single instrument or in two or more

5
[1095] 2 K. B. 391.
6
I.C.J Reports, 1960.
related instruments and whatever its particular designation’. So, it is an agreement made between
two or more states or the other subjects of International law.

A treaty is based on consent which may be expressed by ratification, signature, accession, etc.
Once the treaty has accessed it is binding on the parties. By virtue of pacta sunt servanda, State
parties shall perform the treaty in good faith and it is the law for the parties and failure to comply
with it will incur an international responsibility unless a defense is there.7 State, internationally
recognized entities alone can conclude treaties under the International law.

The Permanent Court of International Justice held that, “a treaty only creates a law as between
the states which are parties to it”8. The ICJ held in North Sea Continental Shelf case9, that there
was no obligation on the part of West Germany with respect to provision in 1958 that has not
been ratified and the same hadn’t entered customary international law status. It further held that,
even non-parties are bound by treaties showing customary law not because it is treaty provision
but because it reflects a rule of customary International law.10

We see that where a treaty provision codifies a rule of customary law the source of law is the
original practice and opinio juris i.e. the treaty provision is merely evidence. But, if a treaty
provision is not intended to be satisfactory but is an innovation designed to change the rule, it
can become the part of customary law if it is accepted in practice. In North Sea Continental Shelf
case, the court was of view that treaty as State practices are material source of Customary
International law binding upon parties and non-parties alike. A treaty may relate to custom in
three ways:

 It may be declaratory of custom at time when provisions are adopted; it may codify a pre-
existing rule of Customary International law.11
 It may crystallize custom, when States agree to provisions to be adopted during treaty
drafting process.

7
Hungary v. Slovakia, (1998) 37 ILM 162.
8
Certain German interests in Polish Upper Silesia, (1926) PCIJ series A. no. 7. At 29.
9
Germany v. Denmark and Netherlands, (1969) ICJ 1.
10
Malcom N Shaw., International law, 6th Ed, Cambridge University Press, p.95.
11
The Preamble to the Convention of High Seas,1958.
  It may serve to generate a rule of customary international law in future by subsequent
practices of the state.

It is a fact, that a large number of states agreeing upon a treaty provision are itself an important
piece of legislation. If such states apply these treaty provisions, especially when they are non-
parties to it, that it can subsequently become a part of Customary International law. It has been
through adoption of various treaties on areas like war, diplomacy, peace, etc. that international
law has undergone important changes since 1945.

GENERAL PRINCIPLES

General sources of law as recognized by the civilized nations are yet another and also important
source of international law as it is seldom mentioned in the judgments. These general principles
are applied in all major legal systems. An example is the principle in Chorzow Factory case12,
that person who intentionally harms others should have to pay compensation or reparation. When
no treaty provision or customary rule exists such general principles are applied. So, General
principles common to the major legal systems even if not there in customary rules may be
invoked as additional rule of international law where deemed suitable.

General Principles of law are recognized already in Hague Conferences in1899 and 1907. The
main objective of inserting General principles is to combat a situation where the court couldn’t
come to a decision because of gap of law13 .

The principle of good faith, pacta sunt servanda, res judicata, that the judge must hear both
sides, etc. is considered to be general principles. Another important one is the law of equity. The
decision in Diversion of Water from the Meuse Case14, is an example of general principle of
Equity applied by the judge. The Anglo Norwegian Fisheries case,15 gives the example of
application of principle of Estoppels.

12
PCIJ Series, A, No. 17, 1928.
13
Nuclear Weapon’s case, (1997) 36 ILM 809.
14
Netherlands v. Belgium, [1937] PCIJ (ser A/B) No. 70,4.
15
[1951] ICJ Reports, 116,124.
General principles are often applied where the ICJ or other international tribunal wants to adopt a
concept which is widely accepted in national legal systems. But, in practice International law
seldom adopts in its entirety a legal concept from a particular national system but actually the
search is for rather a principle which in one or another form is recognized in a majority or wide
range of national legal systems.

JUDICIAL DECISIONS AND WRITINGS OF JURISTS

Article 38(1) (d) of the Statute directs the courts to apply judicial decisions and teachings of most
highly qualified jurists of various nations. The main point to be noted that it further says that it
would act as a subsidiary means for the determination of rules of law.

JUDICIAL DECISIONS:

Article 59 of the Statute says that ‘the decision of the court has no binding force except between
the parties and in respect of that particular case’. In principle the International courts are not
obliged to follow previous decisions but, in practice, they almost always take previous decisions
into account16. In the Interpretation of Peace Treaties case17, court distinguished the earlier
decision of PCIJ in Eastern Carelia case, when, if one were to interpret Article 59 strictly, this
was not at all necessary. It is not to be doubted that a decision has a progressive role to play in
the development of law as is evident from the decisions and opinions in a number of cases such
as Genocide18 , Fisheries19, etc, cases which have an influence on general international law.
Article 38(1) (d) is not just limited to the decisions of the World Court but instead the decisions
of the Domestic Courts, if they deal with matter of International law may be in this category.

WRITINGS OF PUBLICISTS:

The writings of the most highly qualified publicists are also to be regarded as a ‘subsidiary
means for determination of the rules of law’. But, it should be kept in mind that these are merely
material or evidential sources. In fact, in present era, even the writings of most highly qualified
Judges and lawyers can’t make law. International arbitral often cite books and authors but the
International Court of Justice refrains from doing so.
16
Shahabudden Mohammad, Precedent in the World Court, 1996.
17
Interpretation of Peace Treaties Case, (1950) ICJ Rep. 65.
18
Reservations to the Genocide Convention case, (1951) ICJ Rep, 15.
19
Anglo-Norwegian Fisheries case,(1951), ICJ Rep, 116.
OTHER SOURCES

Article 38 is often criticized for being incomplete as it doesn’t mention anything about the acts of
different organs of the United Nations. Although the resolutions of the United Nations General
Assembly is not legally binding, but many of these resolutions have an important law-making
effect as some are part of treaty making process. It is the treaty that has the law making effect but
the position of the United Nations in the making of law shouldn’t be underestimated.

Similarly, the studies of international law produced by the International Law Commission for the
General Assembly, if adopted by the Assembly, may have effect on Customary Law. Decisions
taken by the Security Council under Chapter VII of the Charter and framed in mandatory terms
are legally binding on all the States.20

These were the sources of International law as been mentioned in Article 38 (1) of The Statute of
International Court of Justice. Although, criticized but this gives a starting point and mentions
about what can be so called as the most important and necessary sources of International Law.

CONCLUSION

International law has emerged and had to do efforts to deal with conflicts of that between the
States. International law has developed in a number of ways. International law has come out of
international agreements and treaties between states. On one hand, custom is regarded as the

20
Libya v. United States, (1992) ICJ Rep. 3, 114.
oldest and most important source of International law but some jurists are of the opinion that
treaties are the most important source of International law as it is the agreement between the
sovereign states which they have entered into willfully and which they have obliged to follow.

But, it would be unfair to state which is the important source as not just customs and treaties
but other sources also play a very important role in the development of international law. In case,
where there is no customary provisions or treaty rules then, general principles of law as accepted
by the civilized nations such a good faith, equity, etc, come into existence and solve the problem
of the court to arrive at a particular decision. Similarly, judicial decisions and the Writings of the
publicists although regarded as ‘subsidiary source in the law making’ but are important as in
number of decisions the earlier decisions as well as the writings of the jurists are quoted.

The Statute of International Court of Justice is also not without criticism as many accuse it of
being incomplete not stating other sources, but, it should be kept in mind that as International
Law has developed in decades, slowly the other sources would be identified and can be put in the
statute.

BIBLIOGRAPHY

BOOKS REFERRED:

1.) The Statute of International Court Of Justice.

 2.) Vienna Convention on the Law of Treaties, 1969.
3.) Dr. H.O. Agarwal, International law and Human Rights, 17th Ed., 2010, Central law
publications, Allahabad, India.
4.) Malcom N Shaw., International law, 6th Ed, Cambridge University Press, p.95.
5.) Oppenheim’s International Law, Ninth Ed., Vol. 1, (Ed. Sir Roberts Jennings and Sir
Arthur Watts), (Pearson Education, Universal Law Publishing Company, 1996).

WEB REFERENCES:

1.) International judicial monitor-General principles of International law, available at,

http://www.judicialmonitor.org/archieve_1206/generalprinciples.html, last visited, 20th
March, 2019.
2.) www.academia.edu.
3.) www.legal.un.org.