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SOURCES OF INTERNATIONAL LAW

Submitted by
SHUBHAM PAL

Roll No.: - 164140064

Class: - B. Com LLB 7th Semester

Of
Faculty of Law

Dr Shakuntala Misra National

Rehabilitation University
Lucknow

In
10/2019

Under the guidance of

Ms. SHAMBHAVI UPADHAYAY MA’AM

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher MS.

SHAMBHAVI UPADHYAY MA’AM who gave me the golden opportunity to
do this wonderful topic “Sources Of International Law” which also helped me in
doing a lot of Research and I came to know about so m any new things I am really
thankful to them.

SHUBHAM PAL
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TABLE OF CONTENTS

1. Introduction.........................................................................................................04

2. Statute Of I.C.J...................................................................................................05

3. Treaties &Treaties as source of P.I.L....................................................... 06-07

4. International Custom.......................................................................................08

5. Decision of I.C.J. & International organization..................................... 09

6. General Principle of Law................................................................................10

7. Conclusion.............................................................................................................11

8. Bibliography.........................................................................................................12
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SOURCES OF INTERNATIONAL LAW

Introduction

In every legal system there must be some criteria by which legal

norms or ‘laws’ are recognized. It must have reasonably clear ‘sources of law’.
Generally speaking, these sources of law are either ‘law creating’ or ‘law
identifying’. That is why writers usually distinguish the ‘formal sources’ and the
‘material sources’ of law.
According to Salmond, “A formal source is that
from which a rule of law derives its force and validity. The material sources, on
the other hand, are those from which is derived the matter, not the validity, of the
law. The material source supplies the substance of the rule to which the formal
source gives the force and nature of law”.1 Simply put, a formal source represents
the mechanism through which the law comes into being, whereas a material source
indicates where the legal rules come from, that is, where the rules are located. In
other words, the function of a formal source is ‘law creating’ whereas the function
of a material source is ‘law identifying’. Where do international lawyers look to
find international law? There are, in the context of international law, recognized
and accepted methods by which legal rules come into existence (formal sources) as
well as several ways in which the precise content of legal rules can be identified.
These are the sources of international law. The most important source of
international law for centuries was customary law, evolving from the practice of
States. The recent attempts to codify international law and the conclusion of
multilateral treaties in many important areas have sought to clarify the law and to
1
Salmond, J.W., Jurisprudence, 7th.ed., 1924, para. 24.
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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 immunity or State responsibility. The changes in
international community since 1945 have led to fundamental disputes on the
sources of international law and it must be admitted that they have become an area
of considerable theoretical controversy. In particular, the two main traditional
sources, custom and treaty, are now often difficult to distinguish clearly. The main
objectives of the present paper, therefore, are to clearly identify the interaction
between the two main sources, namely customary law and treaty law, and to clarify
the controversy relating to the hierarchy among the sources of international law.

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 38 of the Statute of the International Court of Justice is always the starting
point for any study of the sources of international law.

Article 38

1. The Court, whose function is to decide in accordance with

international law such
disputes as are submitted to it, shall apply:
(a) International conventions, whether general or particular, establishing
rules recognized by the contesting States;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
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(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 the rule of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequoet bono, if the parties agree thereto.
These provisions are expressed in terms of the function of the Court, but they
represent the previous practice of arbitral tribunals, and are generally regarded as
an authoritative statement of the sources of international law. Some writers have
criticized the Article on the ground that it does not list all the sources of
international law, or that it includes aspects which are not genuine sources, but
none of the alternative lists which have been suggested has won general approval. 2
It is therefore proposed to examine the sources listed in the Court’s Statute before
considering other possible sources of international law.

TREATIES

Article 38 (1) (a) of the Statute of the International Court of Justice

requires the Court to apply “international conventions, whether general or
particular, establishing rules expressly recognized by the contesting States”. The
word ‘convention’ means a treaty and whatever the nomenclature is, 3 the substance
is the same: it is an agreement made between two or more States or other subjects
of international law.

2
The International Court of Justice has been prepared to consider other sources not listed in
Article38.
3
International agreements may have various names: treaties, conventions, protocols, pacts,
covenants, statutes, final acts, and so on.
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Treaty as a source of international law

A treaty is based on consent. Such consent

may be expressed by one of the accepted methods (signature, ratification,
accession, etc.). Once a treaty has entered into force, it is binding on the parties to
it. By virtue of the maxim pactasuntservanda, States parties shall perform the
treaty in good faith. In other words, the treaty is the law for the parties. Failure to
comply with the terms of a binding treaty will incur international responsibility
unless a defense is available4.

Being based on consent, the general principle is that only the

parties to a treaty are bound by its terms. As the Permanent Court of International
Justice in 1926 put it in Certain German Interests in Polish Upper Silesia, “a treaty
only creates law as between the States which are parties to it’. Hence, for third
States treaties are something devoid of any legal consequence: they are a thing
made by others (res inter aliosacta). To put it differently, a treaty may not impose
obligations or confer rights on a third party. This is often expressed in terms of the
Latin maxim pactatertiisnecnocentnecprosunt. This general principle is now stated
in Article 34 of the Vienna Convention on the Law of Treaties, 1969, which reads:
“A treaty does not create either obligations or rights for a third State without its
consent”.

4
Case Concerning Gabcikovo – Nagymaros Project (Hungary v Slovakia) (1998) 37 ILM 162
(Danube Dam Case).
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INTERNATIONAL CUSTOM

The second source of international law listed in the Statute of the International
Court of Justice is ‘international custom’. Article 38 (1) (b) refers to “international
custom, as evidence of a general practice accepted as law”. As confirmed by the
International Court of Justice in the Nicaragua case5, international custom is
constituted by two elements: (1) the objective one of ‘a general practice’; and (2)
the subjective one ‘accepted as law’, the so-called opiniojuris. In the Continental
Shelf(Libya v Malta) case, the Court stated that the ‘substance of customary
international law must be looked for primarily in the actual practice and opiniojuris
of States. This is the established doctrine, accepted by States, international
tribunals and most writers like.

The material sources of custom or evidence of State practice can be found in the
following:
(1) Treaties;
(2) Judicial decisions;
(3) National legislation
(4)Diplomatic correspondence
(5) Opinions of national legal advisors;
(6) Resolutions relating to legal questions of the General Assembly
(7) Practice of international organizations.
Evidence of customary law may also be found in the writings of international
lawyers, and in judgments of national and international tribunals, which are

5
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), (1986) ICJ
Rep.14 at 97.
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mentioned as subsidiary means for the determination of rules of law in Article

38(1)(d) of the Statute of the International Court of Justice.

Decisions of International Organizations & ICJ

The foregoing sources complete the "official" list pertaining to sources of
international law, as contained in the Statute of the International Court of Justice.
Yet, the question remains: Have the sources of international law really been
exhausted? One source is conspicuously missing from that list: the decisions of
international organizations.

The reason for this omission is easily explained. The Statute of the International
Court of Justice containing this "official" list was drafted about 80 years ago, long
before international organizations became a prominent feature of international life.
Therefore, these decisions are a relatively new phenomenon as a source of
international law. Today their existence cannot be denied.

However, the acceptance of this new aspect leads to fresh problems. Decisions of
international organizations are extremely diverse in reality and hence defy any
generalized description or analysis. Yet, the fact that some emanate from regional
organizations like the European Community or the Gulf Cooperation Council and
others from global organizations, like the United Nations, is a relatively minor
problem.6

Some decisions contain generally binding rules, like the regulations of

the European Community, and are comparable to domestic legislation. Many
others, like the Resolutions of the General Assembly of the United Nations, are
normally just recommendations. But it does not follow that they are legally
irrelevant. In fact, recommendations are frequently relied upon in legal argument.
6
https://www.academia.edu/10617913/Customary_and_Conventional_Sources_of_International_Law
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Not all of these decisions are equally authoritative and a determination of their
legal significance often requires detailed analysis of such factors as the number of
positive votes, which countries voted in favor or any confirmation through
repetition. To complicate matters further, some bodies like the United Nations
Security Council will adopt binding decisions at times, such as resolutions
imposing sanctions on members. At other times, the Security Council will merely
pass a recommendation calling upon states to follow a particular course of action,
like suggesting a form of dispute settlement. In order to determine the legal nature
of a particular Security Council Resolution, its text needs to be studied with a view
to gauge the precise intention of the Council. In most cases, however, this is not a
practical problem.

General Principles of Law

General principles of law are a source of international law that is theoretically
equivalent to treaty or customary law. But in actual practice, general principles are
used mostly to close gaps left by treaties and customary law. General principles of
law are established by comparing national legal systems. Any principles common
to all or most of these systems, may be applied also in an international law context.
Examples would be principles such as the binding nature of agreements, protection
of acquired rights, prohibition of unjust enrichment or principles of procedural
fairness before a court of law.7

General principles of law are obviously useful and are quite often applied,
especially by international arbitral tribunals. But these are also rather unwieldy,
and positive proof of their existence and application can be somewhat
complicated. Nobody can possibly compare all domestic legal systems. A practical
solution is often found by studying some leading representative systems of law,

7
https://www.academia.edu/10617913/Customary_and_Conventional_Sources_of_International_Law
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derived from different legal cultures such as civil law, common law and Islamic
law, often with the help of secondary publications in accessible languages.

Conclusion

There are different sources of international law such as treaties, customary

international law and general principles of law. In their actual application,
however, these sources are closely interrelated. They often interact by
supplementing and replacing each other. Often a rule created in one type of source
later emerges in the form of another source. Thus, these typical sources of
international law ought never to be viewed in isolation.

The law-making process in the current international system is far from ideal, it is
poorly coordinated and rather haphazard. Considering this structural weakness, the
system works surprisingly well most of the time. However, this should not induce
complacency. The nature and the magnitude of present and prospective global
challenges require fresh thinking in the sphere of international law. It will require
creativity to come up with innovative ideas and techniques and much courage to
implement them effectively.
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BIBLIOGRAPHY

1. International Law & Human Rights

By S.K. Kapoor

2. https://www.academia.edu/10617913/Customary_and_Conventional_Sources_of_International_Law

3. Salmond, J.W., Jurisprudence, 7th.ed., 1924, para. 24. Etc.