International Law

Sources of International Law

Primary:

1. Treaties/Conventions
- Article 2 of the Vienna Convention on the Law of Treaties 1969: “a treaty is an
agreement whereby two or more States establish or seek to establish a relationship
between them governed by International Law”
- Two types of treaties: Law Making Treaties and Treaty Contracts
- Treaty Contracts: specific, time bound, bind only parties of the treaty, one time
contract. Series of similar treaty contracts tend to become customary law though.
- Law Making Treaties: the provisions of the treaty form international law, consented by
P5+1 States. Lays down the rules of general application. Perform the same function in
international field as legislation does in the state field. Intended for future or continuing
observance. An example of such treaty is UN Charter itself

2. Customs
- As evidence of general practice accepted as law
- Unwritten law, binding, and can be legally imposed
- When treaty provisions are ambiguous, customs help decide the case; useful as a
contingent source
- Treaty provisions become a customary law only if recognized by the parties to the treaty
as that of a norm creating nature and express or imply that the provision is binding
- As per ICJ, a custom requires following characteristics to be considered as law:
Duration, Uniformity, Generality of Practice, and Opinio Juris et Necessitates

3. General Principles recognized by civilized States

- Mentioned as a source of law in Article 38(1)(c) of the Statute of ICJ
- Colonial/Imperial powers usually regarded as the Civilized States
- Recognized almost by all States. Only becomes law when recognized as one by the
World Court
- ICJ resorts to this source only when the treaty and customs are non-liquet (not clear)
- Examples of general principles are ‘good faith’, ‘the principle of humanity’, ‘the principle
that breach of an obligation entails an obligation to make reparation’

Muhammad Minhaj Mahdi

International Law

Subsidiary (English)/Auxiliary (French):

4. Judicial Decisions
- Mentioned as a source of law in Article 38(1)(d) of the Statute of ICJ
- According to Article 59 of the Statute of ICJ, “a subsidiary means of determination of
rules of law” not a primary source of law
- The main International tribunal is International Court of Justice
- The decisions of ICJ not binding except on the parties to the case
- The prior decisions not even binding on the court itself: decisions of ICJ do not set a
precedent
- However, the court mostly upholds its decisions and does not deviate from its earlier
decisions

5. Juristic Works
- Mentioned as a source of law in Article 38(1)(d) of the Statute of ICJ
- Cannot be determined as an independent source of law but the view of jurists may help
in development of international law
- Internationally reputed scholars: Oppenheim, Grotius, Vattel
- In the case of Paquete Habana (1900), US Supreme Court Judge Gary J said that the
juristic works are a “trustworthy evidence of what the law really is”

6. Equity
- Under Article 38(2) of the Statute of ICJ, Case to be decided ex aequo et bono
- Case decision not under legal consideration but solely on what is fair and reasonable in
the circumstance of the case
- Though it has never been used by ICJ as of yet

Soft Law

- Resolutions and Declarations of UNGA

- Codes of conduct
- Some resolutions tend to become customary laws if consented by most States (e.g.,
resolution against Apartheid); these resolutions become binding on States after
becoming a customary law
- No legal importance but political significance
- Some resolutions embody a clear consensus of international community
- Helps in development of International Law and practice

Muhammad Minhaj Mahdi