SOURCES OF INTERNATIONAL LAW

Pratiksha Sharma
Sem- 7, roll no- 305/20 sec- F
 INTRODUCTION
As per Oppenheim international law is law of nations or is the name of the body of
customary and conventional (treaties) rules which are considered legally binding by
civilised states in their intercourse with each other. By intercourse we understand
interaction. It covers every facet of interstate activity like use of sea, outer space
Antarctica ,human rights ,diplomatic relations, trade and commerce, postal
services ,carriage of goods and messengers ,extradition and asylum environment narcotic
and psychotropic substances , terrorism and etc.

The term ‘sources’ is very vague. Many scholars and jurists opined differently as to what is
the meaning of the word ‘sources’ and what can be termed as actual and valid sources.
SOURCES OF INTERNATIONAL LAW
Professor Brierly describes the main sources of international law to custom and reason. Westlake says that custom and reason are the two sources of
international law, and adds Roman laws as subsidiary source.

As pointed out by Starke, “the material sources of international law may be defined as the actual materials from which an international lawyer determines
the rule applicable to a given situation". The term source refers to methods or procedure by which international law is created. Article 38 (1) of the
Statute of the International Court of Justice established by the charter of United Nations defines the sources of international law as under:

a.International conventions, whether journal or particular, establishing rules expressly recognised by contesting states. (They conform to international
treaties proper).
b. International custom, as evidence of a general practice excepted as law. (The evidence of international custom is to be sought primarily in state
practice.)
c.The general principles of law recognised by civilised nations.
d.Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicist of the various nations as subsidiary
means for determination of rules of law.

Article 38 (2) however adds that the aforesaid provision shall not prejudice the power of the court to decide the case ex aero et bono (in justice and good
faith) if the parties agree thereto.

Besides the above, the other sources of international law which may be mentioned at international Comity., State papers other than treaties, state
instructions for the guidance of their own officers and tribunals, resolutions of international conferences, principal acts of Parliament and the decisions of
the municipal court and opinions of Judicial consultants of textbook writers. Lastly the decisions and determinations of the various organs of the United
Nations and other international bodies form an important source of international law.
 INTERNATIONAL CONVENTIONS AND TREATIES

Article 38(1)(a) of the Statute provides convention as one of the formal sources of
International law. It states that, while deciding any case, the court shall apply general or
particular international treaties that are expressly recognized by the contracting party.

•A convention may be General, either because of the number of parties to it, or because
of the character of its content: it may be particular because of the limited number of
parties, or because of the limited character of its subject matter.

•They are a binding written agreement between two or more parties, creating mutual
rights and obligations. Thus, a treaty or convention is contractual in nature. They are
also known as a pact, agreement, covenant, charter, and memorandum of understanding.

•Strictly speaking a treaty is not a source of law so much as a source of obligation under
law. Treaties are binding only on States which become parties to them and the choice of
whether or not to become party to a treaty is entirely one for the State .There is no
requirement to sign up to a treaty.

•The basis of treaty law is ‘pacta sunt servanda’, which means that agreements must be
honoured and adhered to.

•The Vienna Convention on the Law of Treaties defines a ‘treaty’ as ‘an international
agreement concluded between States in 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 2(1)(a))
•For a treaty to be a source of law and not just a source of obligation, it shall be universal and affect
even the non-parties of the contract. Accordingly, treaties are divided into two types, that are as
follows:

‣Law-making treaties: the provisions of law making treaty are directly the source of International
law. These kinds of agreements have a large number of parties. Thus, they are also called multilateral
treaties. They can be used directly as a source of international law. Further, these treaties have a
general legal standing, rather than being specific to the parties in a contract. They may lay down
general rules or enunciate universal rules. Some examples of multilateral treaties are the United
Nations Charter , Vienna Convention on the Law of Treaties, 1969 (VCLT), etc. It is further divided
into two parts – treaties enunciating rules of universal international law and international treaties
which lay down general principles.

‣Treaty contracts: Treaty contracts or bilateral treaties are generally contracted between two parties.
They are drafted in a way that they only suit the object, and establish the rights and obligations
against the parties in the contract. Further, a treaty which is originally between two States can later
be converted into a multilateral treaty by adding more parties that will be universally accepted by all.
The Simla Agreement of 1972 between India and Pakistan is an example of a bilateral agreement.
 INTERNATIONAL CUSTOMS
It is the older and original source of law. It is as the second important source of
international law to the extent to which it is evidence of a general practice excepted as
law. International custom has developed by spontaneous practice and reflects a deeply
felt community of law.

•Custom is the foundation stone of the modern international law. It was so because a
large part of international law consisted of customary rules. International custom may
mean a kind of qualified practice, distinguished from others by the existence of a
corresponding legal obligation to act according to this by a practice.

•They evolve through the practises of and usages of nations and their recognition by
the community of nations.Custom in its legal sense involves something more than
habit or usage. Custom is that line of conduct which the society has consented to
regard as obligatory. The extra-territorial rights and privileges afforded to foreign
diplomats by all civilised states in their territory furnish an example to the force of
custom as a basis for International Law.

•Article 38(b) of the statute of international Court of Justice take a good night's
international custom as evidence of general practice excepted as law, as one of the
sources of international law.

•The terms custom and usage are Open used interchangeably. According to Starke, there
is a clear technical distinction between the two uses represents the twilight stage of
custom. Custom begins where usage ends. Usage may be conflicting, customer must
be unified and self consistent. This can never be the case with the custom.
• There are two kinds of customary rules - general, particular or exceptional.
‣ General customary rules are those which are binding generally on all the states such as the basic rules of the law treaties, of
diplomatic intercourse or of the laws of the Sea.
‣ Particular customary rules or local customary rules are those where practice has been developed between two states. Thus, such
rules are binding only on two states. Such customary rule is also sometimes called bilateral custom.
‣ Exceptional customary rules are binding on the whole or regional community of states in relation to one or a few subjects of
international law. These are called exceptional customary rules as they amount to an exception for the benefit of one or few states.

• Ingredients of custom-
i. Duration- When a particular usage is practised by the states for a long duration, it has a tendency to become custom. How much
time usage takes to transform into custom is a question which is difficult to answer. The period of time required for a practice to
mature into law cannot be dogmatically determined. It is to be noted that an in Memorial practice or to see a long planned this is
not necessary at all. This is not maintainable at present. Are uses may become custom even in a short time. All depends on the
circumstances of the case and the nature of the role involved. In some other cases practice could not transfer even after a lapse of
long passage of time. For instance, diplomatic asylum has been practised by some states since a long time. However it has not
acquired the character of custom. The international Court of Justice in asylum case held that it has not occupied the place of
custom.

ii.Uniformity and consistency- In the Asylum Case the ICJ recognised the need for custom to be uniform and consistent. This is
interpreted from Article 38(1)(b) which refers to international custom ‘as evidence of a general practice accepted as law.’ A
practice is required to be followed consistently by the streets. In the words of the permanent Court of international justice in the
Lotus case, the practice should be constant and uniform. While complete uniformity is not required, uniformity should be
substantial. The above implies that while substantial inconsistencies of the practice prevent the creation of a rule of customary
international law, minor inconsistencies do not.
‣ Case law- ASYLUM CASE
Colombia
v
Peru
In this case the International Court of Justice observed that the party relying on custom must prove that the custom was established in such a
manner that it had become binding on the other party, that the rule invoked was in accordance with a constant and uniform usage practised by the
state in question, and that this usage was the expression of a right a pertaining to the state granting asylum and a duty incumbent on the territorial
state.
‣ In the North Sea continental case the international Court of Justice remarked that state practice had to be both extensive and virtual uniform in
the sense of the provision invoked.
iii.Generality of practice- It is essential that usage should be practised by most of the states in order to transform into a custom. The above
implies that there is no rule which prescribes that the consent of all states is a necessary condition to the formation of a customary rule.For a
rule to be recognised as an international custom it is not necessary for it to be uniform however, it should be generally observed by numerous
States. There has to be a sufficient degree of participation by the States whose interest depends upon the enactment of the customary law.
Following are the State Practices that are generally accepted as evidence of custom:
- Treaties between States
- Judicial decisions of the municipal and international court
- Juristic opinions
- Similar provisions in the national laws
- Practice of international organs
- Diplomatic relations between states
‣ Case law- West Rand Central Gold Mining Co.ltd.
V.
R.
In this case a test regarding the general recognition of custom was laid down. The court ruled that for a valid international custom it is necessary
that it should be proved by satisfactory evidence that the customer is of such a nature that it has received general consent of the states and no
civilised state shall oppose it.
iv.Opinio juris et necessitatis - The State practice, even when it is consistent and widely accepted, is not a customary law, unless it is
accompanied with the ‘psychological element’, that is opinio juris et necessitatis, meaning, an opinion of law or necessity. It is the thin
line that connects usage to custom.
‣ It means that the recognition of a certain practice as obligatory by the state i.e., state must recognise the custom at binding upon them as
law. In the Lotus case, the Permanent Court of International Justice observed that opinion jurist is that its ensure element in the
formation of customary law.
‣ The International Court of Justice in the Nicaragua case held that if the opinio juris or legal obligation of usage can be proved, it will
turn into an international custom. Further, a custom can only bind a few States, as they are ‘regional legal traditions.’
‣ Case law- Right of Passage over Indian Territory
Portugal
v.
India
In this case, the claim of Portugal over the right of passage between the Portuguese enclaves in India was upheld by the court, as there
existed a general and uniform practice that allowed free passage. Moreover, the practice was accepted as law by both the parties, until it
was challenged by India. This custom only applies between India and Portugal, and no other State can benefit from this rule.
 GENERAL PRINCIPLES OF LAW
1.Para (1) C of Article 38 of the Statute of International Court of Justice lists General
Principles of Law recognized by civilised states as the third source of international
law.

• They are most often employed where the ICJ or another international tribunal wants
to adopt a concept such as the legal personality of corporations (eg in the Barcelona
Traction Co. case (1970)) which is widely accepted in national legal systems. But
international law seldom adopts in its entirety a legal concept from a particular
national legal system; instead the search is for a principle which in one form or
another is recognized in a wide range of national legal systems.

• The Statute of the International Court of Justice authorises the court to apply to
general principles of law recognised by civilised nations in addition to international
conventions and custom, which are the two main sources of international law. It
makes national legal system as a source of law for the creation of international law.
• General principles of law is source which at present comes after treaties and customs.
It may mean that the court is directed to apply on the principles of law only when
there is no treaty relevant to the dispute or when there is no customary international
law that can be applied in a particular case. It means those principles which have been
recognised by most or all of the states of the world community in the domestic law.
•
• It is to be noted that the rationality for the inclusion of general principles of law as one of the sources of international law
lies in the fact that a principle which has been found to be generally accepted by certain civilised legal system may fairly
presume to be reasonable as to be necessary to the maintenance of justice under any system.

• Before any such principle is applied by the court, certain considerations are taken into account. Firstly, rule is a general
principle of law , that is, it is not limited in scope. Secondly, the rule is recognised by the state. Thirdly the rule is
recognised by most of the states of the world community. When all the elements are present in any principle of law, the
world court may apply it in international disputes as well.
• General principles of law recognised by civilised nations has been recognised in the most authoritative international
instrument as a source of international law. The source has been increasingly used at present by the court especially in those
cases where no law is applicable on particular point.

• In the view of Judge Chagla, principles of international law can be taken from the municipal law if they have received
universal acceptance and or not inconsistent with any rule of international law. Good faith, responsibility, prescription, in
the absence of any express provision to the contrary, every court has right to them in the limits of its own jurisdiction, a
party to a dispute cannot himself me an arbitrator or judge, res judicata and, in any judicial proceeding the court shall give
proper and equal opportunity of hearing to both the parties etc are recognised the general principles by the International
Court.
‣ However, there are a few principles that have been employed by the courts while pronouncing judgements. They can be considered as the general
principles of international law. :

‣ Reparation and remedies- Reparation means the damages paid to the injured party caused by an unlawful act of the other party. The purpose of
reparation is to re-establish the situation that existed before such harm occurred.International courts in various judicial decisions have recognised
reparation as a part of general principles.
‣ Case law- AMCO Asia Corporation & Ors.
v.
The Republic of Indonesia, the Permanent Court of Arbitration
In this case while awarding damnum emergens or reparations to the injured party, held that it is a common principle of municipal law and, hence it is
also considered as a source of international law through general principles.

‣ Prescription-Prescription refers to the acquisition of territory by an adverse holding, peacefully without protest continuously for a long time. It is
recognised both in domestic and international law cases.
‣ The principle has been used in multiple cases by the international courts. In the Island of Palmas case, the Arbitration Court applied this principle
while pronouncing the judgment. The United State in 1928 argued that the Island of Palmas was rightfully theirs since at the end of the Spanish-
American war in 1898, Spain ceded the territory to the USA. However, the territory was undisputed for a long time, and thus the contention of the
USA was rejected by the court, and Netherland was awarded the Island.

‣ Res Judicata- The principle of Res Judicata is encompassed in municipal as well as international law. It is a Latin maxim which means, ‘a matter
decided’,or ‘the thing has been judged’. In legal terms, once a case is finally adjudged by the court, it will be deemed conclusive and the established
fact of the case shall not be disputed by either of the parties again in the higher courts. The doctrine was applied by the ICJ in the Chorzow Factory
case, wherein an appeal by Poland to reopen the issue of fact of the case was rejected by the court on the ground of rule of res judicata.

‣ Estoppel- Estoppel is a rule of national as well as international law that bars a party from leading evidence that is inconsistent with his prior conduct
and facts against the opposite party. A person should not benefit from his own inconsistency and prejudice of another party. However, the principle is
not applicable in those cases where the person seeking it benefits from such discrepancy. In the Tinoco Concessions Arbitration Case, Costa Rica
benefited from the inconsistency of statements by Great Britain, and thus the Arbitration Court rejected the plea of estoppel by Costa Rica.
JUDICIAL DECISIONS AND JURISTIC WORKS

These are the subsidiary or secondary sources of international law that are regarded as
the interpretations of the primary sources. They are recognised under Article 38(1)(d)
of the Statute of the International Court of Justice. However, according to Article 59,
the decisions of the ICJ are not binding, except on the parties involved and in respect
of that particular case only. Thus, the doctrine of precedent that is applicable in the
national courts, is not applicable in the international courts.

• Under the head judicial decisions, contribution of the following may be considered
separately:
‣ International Court of Justice- International Court of Justice at present is the main
international desk judicial tribunal. However its decisions are binding only to the
parties to a case. It does not create a binding rule of international law. Although
they are not binding in subsequent cases, in practice they carry considerable weight
and they are respected and it is difficult for the court to deviate from its early
decisions. It is significant to note that the decisions of the court have a great impact
on the existing rules of international law and they cannot be ignored either by the
court itself or by other tribunals.

‣ Awards of the International Tribunals-Awards of the international tribunals such as

Permanent Court of Arbitration is created by the Hague conference of 1899 and
1907 and other tribunals such as British American Mixed Claim Tribunal and
others have contributed a lot to the development of international law. It has been
asserted that there was a tribunal or not judicial but mainly quasi-diplomatic
compromise, and they therefore cannot be regarded as a source of international law
it will be noted that the view cannot be applied to all the cases.
‣ Decisions of the Municipal Courts- Decisions of the municipal courts according to Oppenheim are not a source of law in the sense that
they directly bind the state from whose they emanate. It is true that the decisions of the municipal courts of a state have little value in
international law, but the uniform decision of the quotes of many states have a tendency to create evidence of international custom
especially in those fields of international law which are interwoven between international law and municipal law such as nationality,
extradition and diplomatic immunities.

‣ Decision of the Regional Courts- The creation of the Regional International courts for setting link the dispute in a particular area in the
recent development of international law. For example the Court of Justice of the European communities, the European Court of Human
Rights and the Inter-American Court of Human Rights. They have contributed immensely to the development of international law in
particular areas.

‣ JURISTIC WORKS- Article 38 of the Statute of the International Court of Justice authorises the court to apply the teaching of the
most highly qualified publicists of the various nations as a subsidiary means for the determination of rules of law. In the first place, the
works of writers play “a part in proportion to its intrinsic scientific value, its impartiality and its determination to scrutinise critically the
practice of states by reference to a legal principle”. In the second place, writings of authors are not an independent source of law,
though they may lead in course of time to form international law by providing useful evidence of what the law is.
• The importance of juristic writings was well emphasised by Mr. Justice Gray of the United States Supreme Court in The Paquete
Habana in these words:

"Where there is treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and as evidence of these, to the works of jurists and commentators, who, by years of labour, research and experience,
have made themselves peculiarly well acquainted with the subjects of which they treat.”
 EX AEQUO ET BONO
The maxim Ex Aequo Et Bono encapsulated in Article
38(2) implies that a case can be decided on merit, or
based on equity and good conscience of the court,
rather than the law specified under Article 38(1). It
allows the court to go outside the realm of the codified
edict. This maxim is applied only with the mutual
agreement of all the parties and not otherwise.
• The term equity as a source of international law, if
used in the sense of considerations of business,
reasonableness and policy of a necessary for the
sensible application of the more settled rules of law.
Strictly speaking, it is of great importance in those
fields where rules are not readily available. The court
in such cases cannot refrain itself from rendering
judgement on the ground that law is silent.
 OTHER SOURCES
1.INTERNATIONAL COMITY- the mutual relations of nations are based on the principles of committee. In other words, when a
state behaves in a particular way with other states, the latter have also to behave in the same way. According to Professor
Oppenheim, international committee has helped in the development of the international law.

2.STATE PAPER- in the modern period almost all the civilised states have diplomatic relations with each other. They send letters to
each other for mutual interest. These letters or sometimes published. A study of these letters sometimes reveals that certain
principles are bitterly followed by states in the mutual intercourse.

3. UNITED NATIONS - The United Nations is an international organisation formed in 1945 that comprises 193 members. The
organisation aims to maintain international peace and security and develop friendly relationships among the nations. It has six
organs, namely, the General Assembly (UNGA), the Security Council (UNSC), the Trusteeship Council, the Economic and Social
Council, the International Court of Justice, and the Secretariat. The decisions and resolutions of the UNGA, UNSC, and ICJ are the
key sources of law

‣ Resolutions of UNGA- The General Assembly is the principal organ of the UN that comprises all the State members, each having
one vote. The resolutions passed by the UNGA are not considered to have an authentic legislative character, meaning it does not
have any binding force on the State members or the ICJ. However, the resolutions and decisions may have normative value. They
sometimes provide significant evidence to establish the existence of a rule or an opinio juris, without which international custom is
not recognized.
 CONCLUSION
The sources of international law cannot be isolated into separate water-tight
containers. They interact closely and influence each other. A treaty, which is a set
of codified rules now is a product of long evolution that might involve custom,
discussion and deliberations by the international organisations. Many times
customary international laws are turned into treaties through codification. The
covenants are then interpreted and implemented by the world court and municipal
courts, which becomes another source of international law. Various new sources
have also emerged from the interactions between the existing sources of law. Thus,
the key to understanding one source is to study it in relation to other sources.