Sources of International law

Lawrence- Consent is the important and main source of international law

Professor Brierly- The main source of international law is custom and reason.

Westlake- Custom and reason are the two sources of international law.

Article 38 (Para 1)- ICJ Statute- is considered and recognised as the most authoritative and
complete statement as to the sources of international law.

CUSTOM- older and original source of law.

 The objective element

 Psychological element is 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 is referred
to as opinio juris sive necessitatis

Case law- North Sea continental shelf case

Facts-

Federal Republic of Germany vs Netherland and Denmark

The ICJ noted that action must not only amount to civil practice but they must also be such or
to be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of the law requiring it. The state’s concern therefore must feel that
they are conforming to what amounts to a legal obligation.
Custom maybe either general or regional.
General customs are binding upon the international community as a whole.
On the other hand, local or regional custom apply to a group or state or just two states in their
relation inter-se.

Portugal vs India – The right of passage over Indian territory case.

In this case the ICJ accepted the argument that a route of regional custom with the India and
Portugal. The court stated regarding the Portugal state of a right of passage as formulated by
on the basis of local custom, it is objected on behalf of India that no local custom could be
established b/w two states. It is difficult to see why the no. of states b/w which a local custom
may be established on the basis of law practice must necessarily be larger than two.

Objective element- i.e., state practice is normally constituted by repetition of certain

behaviour on the part of states for a certain length of time which manifests a certain attitude
without immunity to a particular Matter.

Asylum Case
Colombia vs Peru (1950)

Three questions need to be considered

 What duration of practice is required
 How uniform and consistent must be the practice to give rise to rule of law
 How general must be the practice in order to bind the third states.
Duration of the practice- jurisprudence of the ICJ indicates that no particular duration is
required for practice to become law provided consistency and generality of a practice are
proved.

North Sea Continental Shelf Case-

it was recognised that no precise length of time during which a practice must exist. What is
necessary to show is simply that it must be followed long enough to show that other
requirements of customs are satisfied.

2nd element – Uniformity and Consistency

Asylum case, ICJ noted the facts brought to the knowledge of the court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of
diplomatic asylum and because of this there is no uniformity or consistency in state practice.

Complex uniformity is not required an minor inconsistencies will not prevent the creation of
customary rule provided there’s substantial uniformity.

Nicaragua Case 1986

Nicaragua vs USA

The ICJ noted it would suffice that conduct in general was consistent with the rule and the
instances of practice inconsistent with the rule we treated as breaches of that rule rather than
as recognition of a new rule.
3rd Element- The generality of Practice

It means that the actual practice must be widespread but universality of practice is not
required.

The subjective element

The rule in question must be regarded by states as the inviting in law that they are under a
legal obligation to obey.

Persistent objective rule

Essentials to be satisfied

 Objection must be raised during the formative state of the rule.

A state should raise its objections as early as possible and react to unwelcome
development, not only when the subject matters of new development will affect
directly its interest but also when in the immediate future, those developments have
no great relevance to that state.
 The objection must be expressed
If a state remains silent then its silence will be interpreted as acceptance of that rule.
 Objection mist be maintained consistently.
 The burden of proof is on the objecting states.
 2nd Source of Law- Treaties and Conventions

Article 38(1), clause A, in contrast with the process of creating law, through custom, treaties
are a more modern and more deliberate method.

Article 2 of Vienna convention on law of treaties, 1969 defines Treaties.

“Treaty means an international agreement concluded b/w two or more states in a written
form and governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation.”

Article 6- Every state possesses capacity to conclude treaties and enter into agreements.

The obligatory nature of treaties is founded upon the customary International law of
Principles that agreements must be kept (pacta sunt servanda). This also finds place in
Article 26 of VCLT, 1969 which provides every treaty in force is binding upon the parties
and must be performed by them in good faith.

Different Types of treaties

Mainly 2 types-

Law Making Treaties Treaty contracts

1) Law Making

Law Making treaties are intended to have universal or general reference. Law making treaties
are those agreements whereby states elaborate their perception of international law upon any
given topic or establish new rules which are to guide them for their future in their
international conduct. Such law making treaties of necessity require participation of large
number of states to emphasise this effect. Also called Normative Treaties

2) Treaty Contract

Treaty contracts apply only as decree on two or small number of states. For e.g. a series of
bilateral; treaties, b/w any two states.
It is now established where a treaty tule comes into being, covering the same ground as a
customary rule, the latter will not be simply absorbed within the former but will maintain its
separate existence.

Art 34 of the VCLT provides a treaty cannot be obligatory on a third-party w/o its consent.

However, certain treaties, for eg- UN Charter in its creation of a definitive framework for the
preservation of international peace and security declares it article 2 para 6 that the
organisation shall ensure that states which are not members of UN act in accordance with the
principles listed in article 2 so far as maybe necessary for the maintenance of international
peace and security.

3rd Source- General Principles of Law

In any system of law, a situation may very well arise where a court when considering a case
before it, it arises that there is no law covering exactly that point. In such instances, the Judge
will proceed to deduce a rule that will be relevant, by analogy from already existing rules or
directly from the general principles that guide the legal system.

Article 38 Para 2 clause 3, was inserted as a source of law to close the gap that might be
uncovered in international law and solve this problem which is known legally as non-liquet.

Two major opinions prevail-

1. That the phrase embraces such general principles as pervade domestic jurisprudence
and can be applied to international legal questions. The other view asserts that this
phrase refers to General Principles of Law linked to natural law and therefore this
source of international law is regarded as an affirmation of natural law concepts.
Case- Chorzow Factory Case 1928

Germany and Poland

Facts— In this case which followed the seizure of nitrate factory by Poland, the PCIJ
declared “it is the general conception of law that every violation of an engagement involves
an obligation to make reparation”.

The court also regarded it as a principle of international law that the reparation of a law may
consist in and indemnity corresponding to damage which the nationals of injured state have
suffered as the result of the act which is contrary to international law.

Genocide Convention Case.

Facts-

The question of Res Judicata was discussed in the genocide case 2007 where the issue
focused on the meaning of 1996 decision of the court rejecting the preliminary objections to
jurisdictions. The court emphasised that the principle signifies that the decisions of the court
are not only binding on the parties but are final in the sense that they cannot be reopened by
the parties as regard the issues that have been determined. The court noted two purposes one
general and one specific. The first refer to the stability of legal relations that requires that
litigation come to an end. The second was that it is in the interest of each party that an issue
which has already been adjudicated in favour of that party not be argued again.
Corfu Chanel Case 1949

UK and Albania

Facts-

The ICJ in the Corfu Chanel case referred to circumstantial evidence pointed that this indirect
evidence is admissible in all system of law and its use is recognised by international
decisions.

Barcelona Praction case 1962

Belgium and Spain

Facts-

Belgium had sought compensation for the damages claimed to have been caused to its
nationals who were shareholder BPLT. The ICJ relied heavily upon the municipal law of the
limited pvt company and held it was for the national state of company to exercise and plead
diplomatic protection of shareholders.

4th Source- Equity

Equity can perform three functions-

1. It can be used to adapt the law to the facts of delusional cases. For e.g. A judge who
does not wish to apply a rule of law can say that the application of the letter of law would be
contrary to the spirit or that the legislator must have intended that there should be exceptions
to the letter of it.
2. It can be used to fill the gaps in the law. It called equity praetor and

3. Function- it can be used as reason for refusing to apply unjust laws- equity contraregum.

In the Rann of Kutch arbitration b/w India and Pakistan in 1968, the tribunal agreed that
equity forms a part of international law and that accordingly and that parties are free to
present and develop their cases with reliance on principles of equity.