(PUBLIC INTERNATIONAL LAW)

WHAT ARE THE IMPORTANT SOURCES OF INTERNATIONAL LAW? DID

TREATIES AND CONVENTIONS PLAY A MAJOR ROLE IN DEVELOPMENT OF
INTERNATIOAL LAW?

INTRODUCTION:
The International Law is comprehensive in nature and due to that it is an amalgamation of various sources, there exists no single system
of laws which can interpret and extend the law but international law still exists and is ascertainable. There are ‘sources’ available from
which the rules of international law may be extracted and analyzed. According to Lawrence, if we take the source of law which has all the
authority required to give it binding force, then in respect of International Law there is one source of law and that is the consent of
Nations. This consent may be either tacit (custom) or express (treaties). Major sources which form the conventional source of
International Law includes the International Convention and Treaties. Sources of International Law can be bifurcated into primary and
secondary sources which are explained below.

PRIMARY SOURCES OF INTERNATIONAL LAW:

Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs and
principle of Law. Article 38 (1) (a-c) of the statute of International Court of Justice is widely recognized as the backbone of the formal
source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the
Statute of the International Court of Justice in The Hague has been treated as a convenient catalogue of international legal sources.

CUSTOM AS A SOURCE OF INTERANTIONAL LAW:

The original and the oldest sources Law is known as Custom. The rules of customary International Law involved a long historical process
which gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behaviour
because it is not a written source of law. A rule of customary law is said to have two elements: First, there must be widespread and
consistent State practice. Secondly, there has to be “opinio Juris”, a Latin term which means a legal obligation to believe in the existence of
such law. Prior to the practice of negotiating multilateral treaties after WWII, international law consisted primarily of customary rules.
Custom has evolved through a long historical process by which state practices and recognition of the binding character of those practices
have become normative rules. The rationale for custom is that it rests on the consent of sovereign or equal states. The creation of custom
can be slow and its content uncertain, and it has been replaced to a large extent by multilateral treaties, but custom nonetheless
continues to contribute significantly to international law

FEATURES OF CUSTOMARY LAW:

UNIFORM AND GENERAL;

State practice to give rise to binding rules of customary International Law, that practice must be uniform, consistent and general and must
be coupled with a belief that the practice is obligatory rather than habitual. In the Asylum Case, the court declared that a customary rule
must be used constantly and uniformly throughout history which can be traced through state practice.

DURATION;
Continuous and regular use of particular conduct is considered as a rule of customary law. In the North Sea Continental Shelf cases, the
ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to
show that other requirements of custom are satisfactory.

AN OPINION OF LAW;
To assume the status of customary international law the rule in question must be regarded by the state as binding in Law i.e. the states
must regard themselves as being under a legal obligation to follow the practice. In the Lotus Case, Opinio Juris was seen as an essential
element of customary international law and this was affirmed in North Sea Continental Shelf Cases as well.

TREATIES/CONVENTIONS AS A SOURCE OF INTERNATIONAL LAW:

Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral.
Multilateral conventions relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral
conventions are those which is formed exclusively by two states to deal with a particular matter concerning these states.
Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, “A treaty is an agreement
whereby two or more states establish or seek to establish a relationship between them governed by international law.” Treaties act as a
direct source of rights and obligations for the states, they codify the existing customary source of law. They are voluntary and cannot bind
nonsignatory to it, however, there are certain exceptions to it that is if any rule forms part of the Jus Cogens norm as they are part of the
accepted principles of International law and every state has a peremptory duty of not breaching them due to their erga omnes obligations.

Treaties can be Divided Into two categories:

1. Law Making Treaties

2. Treaty Contracts

LAW MAKING TREATY:

Law making treaties are those treaties which are entered into by a large number of States. These are the direct source of International
Law. These treaties are binding. Law making treaties may be divided further into two catagories

• Treaty providing the rule of Universal International Law

• Treaty providing general principles

Treaty giving the rule of Universal International Law - These treaties are signed by a majority of the State. The best example of this treaty is
UN Charter. Treaty giving general principles are entered into and signed by a large number of countries giving thereby general principles of
International Like. Geneva Convention on Law of sea and Vienna Convention on Diplomatic Relations, 1961.

TREATY CONTRACTS:
These are the treaties which are entered into by two or more States. The provisions of such treaties are binding only on the parties to the
treaty. Such type of treaties are also the source of International Law because they help in the development of customary rules of
International Law. It is criticised that the classification of treaties are misleading because they both create binding rules. In conventions
numbers of State, parties are involved. There is the majority of state who abide by the obligation and agreed voluntarily. What is the role
of the convention? Do they really create rules, obligations? and principles of International Law? Or they merely state the principle of that
law?

Yes, it creates rules and principles of International Law. The basis is the common consent of the States. There is no law making authority
in the international sphere. The role played by convention in the absence of such Law making Authority is significance. The International
convention goes one step ahead of customary rules. There is no doubt about the fact that treaty stipulations override rules of
International customary law which are incompatible with them. This proposition received approbation in the case of S.S Wimbledon 1923,
where the Permanent Court of International Justice held that treaty law takes priority over international Customary Law. Conventional and
customary rules of International Law are not the only source of International Law, but they fill the gap in absence of law making authority.

GENERAL PRINCIPLES OF INTERNATIONAL LAW:

Most modern jurists accept general principles of law as common to all national legal systems, in so far as they are applicable to the
relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide
rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’
and was inserted into Article 38 as a source of law.

Some of the examples of General principles include

: • The rule of res judicata which has been affirmed by the court in the case of Genocide Convention Bosnia and Herzegovina v. Serbia and
Montenegro,

• The rules of pacta sunt servanda made applicable,

• Reparation must be made for damage caused by the fault,

• The right of self-defence for the individual against attack on his person, family, or community against a clear and present danger,

• For one’s own cause no one can be a judge and that the judge must hear both sides.

SECONDARY SOURCES OF INTERNATIONAL LAW:

Article 38(1)(d) forms part of the material source of International Law also known as the secondary source. It states that judicial decisions
and the teachings of the most highly qualified publicists of the various nations also help in guiding the formation of international law,
however they are not binding but merely advisory in nature.
JUDICIAL DECISIONS AS A SOURCE OF INTERNATIONAL LAW:
Under this, the court is authorised to apply previous decisions of the court which are also known as an evidence of international law,
however, it is subject to the exception stated under Article 59 of the statute of International Court of Justice, states that the previous
decision of the court can only guide the court, it is not binding on the court. It is not to be bounded by precedents but recourse can still be
made by the court to its past decision’s res judicata and advisory opinion to substantiate current case as authoritative evidence of legal
position. ICJ plays a major role in the law-making process through its advisory opinions, case laws and judge’s rule. One of the major
examples of this includes the principle of the prohibition against the use or threat of use of force laid down by the court in the case of
Nicaragua vs. USA which is now considered as a part of Customary International Law. The judicial decision of the court also encompasses
international arbitral awards and the rulings of national courts. One leading example is Alabama Claims arbitration, which marked the
opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration
methods in resolving conflict. Another illustration of the impact of arbitral awards is the Island of Palmas case wherein it has been
referred that a unanimous, or nearly unanimous, decision plays an important role in the progressive development of the law. It helps in
providing a single view for interpretation of the issue at hand which helps in avoiding controversy during the development of International
Law.

JURISTIC WORK AND TEACHINGS OF INTERNATIONAL LAW EXPERTS:

Other major parts of this source also include the ‘teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were
considered as the supreme authorities of the international law in the 16th to 18th Centuries.

Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the
writings of even the most respected international lawyers cannot create law. These are considered as an evidentiary source of law as they
provide an explanation and understanding of the international principles. They carry an essential value because they provide to fill the
grey areas of International Law where treaties or customs do not exist.

OTHER SOURCES OF INTERNATIONAL LAW

International law is not based on a set of rules and therefore article 38 is not exhaustive. There are various other factors that develop the
usage of International Law which include declarations of Security Council resolutions, declarations, and recommendations adopted by the
UN General Assembly, International morality and equity, etc. The world is constantly evolving and the problems are becoming more
complex, the resolutions and declarations adopted by assembly act as an inevitable impact upon the direction adopted by modern
international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of
state practice and state understanding as to the law. For example, in the case of the USA vs Nicaragua, General Assembly had asked the
court for an advisory opinion on the question: “is the threat or use of Nuclear weapons in any circumstances permitted under
International Law?” The court after a review of the relevant international legal instrument as well as the Security Councils’ General
Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons would generally be contrary to the
rules of International Law applicable to armed conflicts and in particular the principles and rules of humanitarian law. The concept of
equity has been referred to in several cases. In the Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that
equity formed part of international law and that accordingly, the parties could rely on such principles in the presentation of their cases. UN
has provided a true compliment for the gap created in what is supposed to be an accurate reflection of other sources of international law
and its activities has positively affected law making ways by resolutions and faster means by 15 members of the Security Council and 191
members of the General Assembly as greater needs arise for fast development of international law codified by International law
commission.

ROLE OF INTERNATIONAL ORGANIZATIONS IN DEVELOPMENT OF

INTERNATIONAL LAW:
The International Community is an amalgamation of various voices and opinions, therefore with the growing need for international
cooperation and to ensure peace in this community International Organization have emerged. An international organization has been
defined as a form of co-operation of sovereign states based on multilateral international organizations and comprising of a relatively stable
range of participants, the fundamental feature of which is the existence of permanent organs with definite competences and powers
acting for the carrying out of common aims.

The essential elements which describe International organization include:

1. Multilateral International agreement

2. Individual Personality of the Institution

3. Permanent organs carrying out its Function

International Organizations are usually created amongst states or by their duly authorized representatives, however, there is no uniform
rule on the same, states sometimes create legal entity based on a treaty though are there to enforce and uphold the principles of a treaty
such as European Court of Human Rights but they are not considered as International Organisations. An international organisation may
come into existence by the formation of a treaty or through an existing organisation granting certain powers for forming an international
organisation. UNICEF is an International organisation which was formed by the United Nations General Assembly.

HISTORICAL DEVELOPMENT OF INTERNATIONAL ORGANIZATIONS:

The development of International Organizations can be traced from the need for establishing the psychological notion of world
government. It was only in the 19th-century major Organizations emerged before that there were smaller councils like the Hanseatic
League or the Swiss Confederation and the United Provinces of the Netherlands etc. Embassies establishing bilateral needs were not
sufficient and adequate to solve problems that arose between more than two states, there was a need to find a way so that interest of all
the states can be represented so an International conference of all the representatives from several states was organized which came to
be known as the principal originator International Organization namely Peace of Westphalia in 1648, which ended the thirty-year religious
conflict of Central Europe and formally established the modern secular nationstate arrangement of European politics. Till the first world
war, the major issues were sought through conferences, for instance, in 1815 congress of Vienna marked the first systematic attempt to
regulate international affairs by means of regular international conferences. Due to several inconsistencies in the ad-hoc nature of these
conferences, because they were only state-specific in nature and could only be called upon by the initiative of the interested states,
international NGOs and public international unions like the International Committee of Red Cross and the inter-governmental associations
emerged during the 19th Century for efficient functioning of vital arteries of communication such as the Rhine and Danube rivers. With the
continuous evolution of the society, it was noticed that an efficient body of International Organizations can be established, and the League
of Nations was the first international organization which was designed not just to organization operation between states in areas which
some have referred to as ‘low politics’, such as transport and communication, or the more mundane aspects. However, after World War II,
the league of the nation was disbanded due to its inefficiency and the United Nations was founded in 1919.

CONCLUSION:
In conclusion, I will like to state that, International law has emerged through various sources which have been codified in Article 38 of the
ICJ statute which identifies customs, treaties and general principles as formal sources of International Law. However, the Judicial decision
is given by the world court also acts as advisory opinions in guiding the development of International law. Various philosophers and juristic
theorists have enlightened the philosophy of International law through their theories and principles as well. International Law helps in
Identifying states as an entity of the world community through various modes so as to provide them with rights and duties. To ensure
peace and order amongst the nationstates, International Organisation plays a major role in increasing cooperation and upholding the
international law which has emerged from various sources. A treaty prevails over customary law as between the parties to the treaty but a
treaty will not affect the rights of States not party to that treaty. There is, therefore, no strict sense of hierarchy between treaty and
customary law, contrary to what is sometimes alleged.